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THE UNIVERSITY OF GEORGIA 



LAW LIBRARY 



.^.•VERSITY OF GEORGIA LAW LIBRARY 




3 8425 00480 0616 




/ 

/ 



Digitized by the Internet Archive 

in 2011 with funding from 

LYRASIS Members and Sloan Foundation 



http://www.archive.org/details/codeofstateofgeo03prep 



THE CODE 



OF THE 



STATE OF GEORGIA. 



ADOPTED DECEMBER 15th, 
1895. 



PREPARED BY 

JOHN L. HOPKINS, CLIFFORD ANDERSON 
AND JOSEPH R. LAMAR. 



VOL. III. 



ATLANTA, GEORGIA: 

THE FOOTE & DAVIES COMPANY, 
Printers and Binders. 

1896. 



"R3 

As 



Entered according to Act of Congress, in the year 1896, by 

THE STATE OF GEORGIA, 
In the office of the Librarian of Congress, at Washington. 



CONTENTS. 



CRIMES AND THEIR PUNISHMENT. 



PRELIMINARY PROVISIONS. 



§1. Construction of statutes. 
§2. Meaning of certain words. 
§3. Future operation of laws. 
§4. Ignorance of law. 
§5. Waiver of law. 
§6. Life, liberty, and property. 
§7. Right to the courts. 
§8. Benefit of counsel, etc. 
§9. Crimination of self. 
§10. Banishment, whipping. 
§11. Jeopardy of life, etc. 
§12. Excessive bail, fines, etc. 
§13. Costs paid after conviction. 



§14. Habeas corpus not suspended. 

§15. No slavery or involuntary servitude. 

§16. No corruption of blood or forfeiture of 

estate. 
§17. No benefit of clergy. 
§18. Crimes punished under coexisting 

laws. 
§19. When no conviction for assault or 

attempt. 
§20. Conviction must precede punishment. 
§§21-29. Sovereignty, jurisdiction, and 

venue. 
§30. Limitations of prosecutions. 



FIRST DIVISION. 

Definition of a Crime; Persons Capable of Committing; Persons Punishable. 

Article 1. Definition, intention, how mani- [ Article 4. Voluntary drunkenness no excuse 



fested. §§31, 32. 

Article 2. Infants, lunatics, idiots, and per- 
sons counseling them. §§33-37.. 

Article 3. Married women acting under 
threats. §38. 



§39. 
Article 5. Misfortune or accident. §40. 
Article 6. Persons acting under fear. §41. 



SECOND DIVISION. 
Principals in First and Second Degree. 
Article 1. Who are principals. §§42,43. | Article 2. Accessories. §§44-49 



THIRD DIVISION. 
Crimes Against the State and People. 



Article 1. Crimes against the State. §50. 
Article 2. Treason. §§51-54. 



Article 3. Insurrection, and attempt to in- 
cite insurrection. 6655-58. 



IV 



CONTENTS. 



FOURTH DIVISION. 

Crimes Against the Person 



Article 1. 
Article 2. 



Article 3. 
Article 4. 
Article 5. 

Article 6. 
Article 7. 
Article 8. 
Article 9. 
Article 10 
Article 11 



Homicide. §§59-76. 
Concealing child's death, advis- 
ing to kill infants, abortion, 
and foeticide. §§77-82. 
Mayhem. §§83-92. 
Rape. §§93, 94. 

Assaults, and assault and bat- 
tery. §§95-105. 
False imprisonment. §§106-108. 
Kidnapping. §§109-111. 
Stabbing. §112. 
Shooting at another. §113. 
Abandonment of child. §114. 
Criminal negligence. §115. 



Article 12. Blackmail, and threatening let- 
ters. §§116, 117. 

Article 13. Conspiracy. §118. 

Article 14. Interfering with apprentices, 
servants, croppers, farm la- 
borers, and employees. §§119- 
122. 

Article 15. Interference with employees. 
§§123-126. 

Article 16. Employers must provide seats 
for females. §127. 

Article 17. Protection of discharged em- 
ployees. §§128-134. 



FIFTH DIVISION. 

Crimes Against the Habitations of Persons. 
Article 1. Arson. §§135-148. | Article 2. Burglary. §§149,150. 

SIXTH DIVISION. 
Crimes Relative to Property. 



Article 1. Robbery. §§151-153. 
Article 2. Larceny. §§154-186. 
Article 3. Embezzlement and fraudulent 

conversions. §§187-196. 
Article 4. The State's property or money. 

§§197-203. 
Article 5. Banks and bank officers. §§204- 

214. 
Article 6. Unlawful mining. §§215, 216. 



Article 7. Fraudulent seizures and levies. 
§§217, 218. 

Article 8. Trespass. §§219-224. 

Article 9. Using horse and skinning cat- 
tle without owner's consent. 
§§225, 226. 

Article 10. Disposing of or purchasing drift- 
ed timber. §§227, 228. 

Article 11. Firing the woods. §§229-232. 



SEVENTH DIVISION. 
Forgery, Counterfeiting, and Unlawful Currency. 
Article 1. Forgery, counterfeiting, and unlawful currency. §§233-255. 

EIGHTH DIVISION. 

Crimes Against the Public Justice and Official Duty. 



Article 1. Perjury, false swearing, and sub- 
ornation of perjury and false 
swearing. §§256-266. 

Article 2. Bribery, influencing governor or 
head of department. §§267- 
269. 



Article 3. Misconduct of officers and per- 
sons concerned in the admin- 
istration of justice. §§270-304. 

Article 4. Personating in bail. §305. 

Article 5. Obstructing legal process and 
sentence. §§306, 307. 



CONTEXTS 



EIGHTH DIVISION.— Continued. 



Article 6. Rescue and escapes. §§308-318. 

Article 7. Lobbying. §§319,320. 

Article 8. Receiving, harboring or con- 
cealing guilty persons, and 
compounding crimes. §§321- 
324. 



Article 9. Barratry and embracery. 66325- 

328. 
Article 10. Mutiny, and instigating mutiny. 

$$329-881. 
Article 11. Appointment of peace-officers 

and detectives. §§332-334. 



NINTH DIVISION. 

Crimes Against tiie Public Peace and Tranquillity. 



Article 1. Libel. §§335-337. 

Article 2. Forcible entry and forcible de- 
tainer. §§338-340. 

Article 3. Carrying concealed weapons ; 
carrying weapons to courts, 
election grounds, etc. ; point- 
ing weapons at another ; and 
furnishing weapons to minors. 
§§340-344. 



Article 4. Preservation of order at parades. 

§§345-347. 
Article 5. Duelling. §§348-352. 
Article 6. Unlawful assemblies, riots, and 

affrays. §§353-355. 
Article 7. Mob violence. §§356-359. 
Article 8. Invasion. §§360-374. 
Article 9. Other offenses against public 

peace. §375. 



TENTH DIVISION. 

Offenses Against Public Morality and Decency, Public Health, Public Safety 
and Convenience, Public Trade, Public Policy, Suffrage, Public Police. 



Article 
Article 
Article 
Article 

Article 
Article 



Article 7 



Article 8 



Article 



Article 
Article 



Article 
Article 



1. Bigamy. §§376-379. 

2. Incest. §380. 

3. Adultery and fornication. §381. 

4. Sodomy and bestiality. §§382- 

386. 

5. Seduction. §§387-389. 

6. Keeping open tippling-houses on 

the Sabbath, lewdness, lewd 

and disorderly houses. §§390- 

393. 
Obscene pictures and abusive 

and vulgar language. §§394- 

397. 
Gaming-houses, gaming-tables, 

and gambling. §§398-405. 

9. Lotteries and gift enterprises. 

§§406-411. 

10. Cock-fighting. §412. 

11. Minors not to play billiards or 

ten-pins without consent of 
parents, etc. §413. 

Traffic in human bodies. §§414- 
417. 

Disturbing divine service, or 
societies, violating the Sab- 
bath, intruding on camp 
grounds, and disturbing 
schools. §§418-427. 



J 2 



13 



Article 14. 



Article 15. 
Article 16. 



Article 17. 



Article 18. 

Article 19. 

Article 20. 

Article 21. 
Article 22. 

Article 23. 

Article 24. 



Regulating the sale and use of 
spirituous, vinous and malt 
liquors. §§428-452. 

Vagrants. §§453-455. 

Sale of milk, imitation butter 
and cheese ; unwholsome pro- 
visions ; adulterated food or 
drink. §§456-469. 

Sale of poisons, opium, mor- 
phine, drugged liquors ; illegal 
compounding of drugs ; adul- 
terated preparations. §§470- 
484. 

Illegal practice of medicine and 
dentistry, and medical college 
diplomas. §§485-489. 

Importation and purchase of 
second-hand clothing. §§490. 
491. 

Putting carcasses of animals in 
streams, and failing to bury 
dead animals, etc. §§492-495. 

Cutting turpentine boxes. §496. 

Furnishing cigarettes to minors. 
§497. 

Contagious diseases and quaran- 
tine. §§498-507, 

The public safety. §§508-521. 



VI 



CONTENTS. 



TENTH DIVISION.— Continued. 



Article 25. Public convenience. §§522-536. 
Article 26. Regulations as to farm products. 
§§537-546. 

Article 27. Salt 4 and use of oleomargarine. 
§§547, 548. 

Article 28. Formulas for composting ferti- 
lizers. §549. 

Article 29. Weights to be stamped on sacks 
of flour and meal. §§550, 551. 

Article 30. Turnpikes, bridges and toll. 
§§552-558. 

Article 31. Private insane asylums, and 
wrongful imprisonment of sane 
persons. §§559-561. 

Article 32. Driving diseased cattle, and 
grazing stock. §§562-565. 

Article 33. Impounding animals, breaking 
a pound, estrays. §§566, 567. 

Article 34. Game and fire-hunting. §§568- 
570. 

Article 35. Terrapins, turtles, fishing, and 
oysters. §§571-592. 

Article 36. Duties of officers of banks and 
other corporations. §§593, 594. 

Article 37. Foreign building and loan asso- 
ciations and insurance com- 
panies. §§595-599. 



Article 38. Peddling without a license. §600. 
Article 39. Emigrant agents. §601. 
Article 40. Receipts shall be given by com- 
mon carriers and innkeepers. 

§§602, 603. 
Article 41. Inspection of oil, and sale of 
illuminating fluids. §§604-610. 
Article 42. Inspection of fertilizers, flour, 

grain, cottonseed-meal, wood, 

timber, and naval stores. 

§§611-621. 
Article 43. Suffrage. §§622-636. 
Article 44. Marrying, and issuing license to 

marry, illegally. §§637, 638. 
Article 45. White and colored convicts not 

to be chained together. §639. 
Article 46. Rogues and vagabonds, and 

nuisances. §§640, 641. 
Article 47. Failure to give bastardy bond, 

or to support pauper. §§642, 

643. 
Article 48. Boats and crews, discharging 

ballast in harbor, pilots and 

seamen. §§644-656. 
Article 49. Pension applications. §657. 



ELEVENTH DIVISION. 



Cheats and Swindlers. 



Article 1. Deceitful means and artful prac- 
tices. §§658-670. 

Article 2. Wrongful sale of mortgaged 
property. §671. 

Article 3. Sale of property under lien. §672. 

Article 4. Selling or encumbering personal 
property, held under a condi- 
tional purchase. §§673, 674. 

Article5. Fraudulent entries and practices 
in speed contests. §§675-677. 



Article 6. Fraud by a limited partner. §678. 

Article 7. Illegally measuring lumber. §679. 

Article 8. Landlords and croppers. §680. 

Article 9. Overcharges by railroad officials, 
and false billing, etc., by car- 
riers. §§681-684. 

Article 10. Wrecking a railroad company. 
§§685-690. 

Article 11. Declaring unearned dividends. 
§691. 



TWELFTH DIVISION. 



Fraudulent or Malicious Mischief. 



Article 1. Destroying books or papers, land- 
marks and buoys, etc. §§692- 
694. 



Article 2. Burning fences or crops, and set- 
ting fire to woods. §§695-699. 



CONTENTS. 



vn 



TWELFTH DIVISION.— Continued. 



Article 3. Injuries to bridges and dams. 

§§700, 701. 
Article 4. Killing or maiming cattle, and 

cruelty to animals. §4702-705. 
Article 5. Putting children to dangerous or 

improper vocations. §§706-708. 



Article 6. Injuring turnpike and naviga- 
tion fixtures, firing or -inking 

vessels, and other acts oi 
malicious mischief. $$700-729. 
Article 7. Threatening to bum property of 
another. §730. 



PROCEDURE. 



CRIMINAL COURTS. 



Justices of the Peace, and Mayors of Towns. 
Article 1. Their jurisdiction. §732-734. 



County Courts. 



Article 1. 

Article 2. 

Article 3. 
Article 4. 
Article 5. 
Article 6. 
Article 7. 



Jurisdictionfand powers and du- 
ties of the judge. §§735-742. 

Exercise of jurisdiction. §§743- 
745. 

Laws applicable. §746. 

Solicitors. §§747, 748. 

Mode of trial. §749. 

Felonies. §750. 

Proceedings when an indictment 
is demanded. §§751, 752. 



Article 8. Proceedings when there is no in- 
dictment. §§753, 754. 

Article 9. When a jury is demanded, and 
the trial. §§755-760. 

Article 10. Offenses above jurisdiction and 
transferred cases. §§761, 762. 

Article 11. Certiorari. §§763-768. 

Article 12. Costs, fines, pay of jurors, and 
forfeitures. §0769-776. 



City Courts. 



Article 1. For the trial of misdemeanors. 

§777-779. 
Article 2. Prosecuting officer. §780. 
Article 3. Rules of practice. §§781, 782. 
Article 4. Accusation and proceeding to 

trial. §§783-785. 



Article 5. The jury. §§786, 787. 
Article 6. Costs, fines, and forfeitures. 
Article 7. New trials and writs of 
§789, 790. 



§788. 
error. 



The Superior Court — Its Officers and Juries. 



Article 1. Jurisdiction of the court, and au- 
thority of the judges. §§791, 
792. 

Article 2. Sessions and adjournments. 
§§793-796. 

Article 3. The clerks. §797. 

Article 4. Solicitors-general. §§798-807. 

Article 5. Special criminal bailiffs. §§808, 
809. 



Article 6. Stenographic reporter. §810. 
Article 7. The grand jury. §§811-847. 
Article 8. Special juries. §§848, 849. 
Article 9. The petit jury. §§850-861. 
Article 10. Special provisions as to the ju- 
ries. §§862-879. 
Article 11. Attorney-general. §880. 



Vlll 



CONTENTS, 



PROCEEDINGS TO COMMITMENT, INCLUSIVE. 

Article 1. Proceedings prior to arrest. I Article 2. Arrest. §§890-905. 

M881-389. I Article 3. Courts of inquiry. §§906-928. 



INDICTMENT AND PRESENTMENT. 



Article 1. Form of indictment. §929. 
Article 2. Two returns "no bill." §930. 



Article 3. Special presentments treated as 
indictments. §931. 



ARREST AND BAIL AFTER INDICTMENT, AND PROCESS AGAINST 

CORPORATIONS. 



Article 1. Bench-warrant. §932. 
Article 2. Bail, surrender of principal, and 
forfeiture of bond. §§933-937. 



Article 3. Process against corporations, and 
mode of trial. §938. 



CHANGE OF VENUE. 

Article 1. When and how r venue may be changed. §§939-941. 



CALL OF THE DOCKET TO SENTENCE. 



Article 
Article 

Article 

Article 4 

Article 5 

Article 6 
Article 7 
Article 

Article 

Article 

Article 
Article 
Article 

Article 



1. Call of the docket. §942. 

2. Arraignment. §§943-949. 

3. Demurrers and special pleas to 
be in writing. §950. 

Pleas of insanity and misnomer. 
§§951-954. 

Exceptions as to form and mo- 
tions in arrest. §955. 

6. Settlement of cases. §956. 

7. Xolle prosequi. §957. 

8. Demand for trial. §958. 

9. Announcement of ready or not 
ready. §959. 

10. Continuances. §§960-968. 

11. Joint offenders. §969. 

12. Impaneling the jury. §§970-978. 

13. Oaths of petit jury, witnesses 
and bailiff. §§979, 980. 

14. Testimony to be reported. §981. 



Article 15. Evidence. §§982-992. 

Article 16. Admission of testimony. §§993- 

996. 
Article 17. Hearsay. §§997-1001. 
Article 18. Admissions and confessions. 

§§1002-1009. 
Article 19. Prisoner's statement. §1010. 
Article 20. Competency of witnesses. §§1011- 

1016. 
Article 21. Examination of witnesses. 

§§1017-1023. 
Article 22. Impeachment of witnesses. 

§§1024-1028. 
Article 23. Order of argument. §1029. 
Article 24. Charge of the court. §§1030- 

1032. 
Article 25. The verdict. §§1033-1035. 
Article 26. The sentence. §§1036-1054. 



NEW TRIALS, AND THE SUPREME COURT. 



Article 1. When a new trial will and will 
1 1 o t be gran ted . § § 1055-1062 . 



Article 2. The motion and proceedings 

thereon. §§1063-1067. 
Article 3. The Supreme Court. §§1068-1077. 



COSTS, FINES, AND FINE AND FORFEITURE FUND. 



Article 1. Costs. §61078-1083. 
Article 2. Fines. §1084. 



Article 3. Fine and forfeiture fund. §§1085- 
1097. 



CONTENTS. 



IX 



SALARIES AND FEES OF OFFICERS, WITNESSES AND JURORS 



Article 1. Illegal fees. §1098. 
Article 2. Solicitor-general. §$1099-1103. 
Article 3. Stenographic reporter. §1104. 
Article 4. Special criminal bailiffs. §1105. 
Article 5. Clerks of the superior courts. 

§1106. 
Article 6. Sheriffs. §1107. 
Article7 . Jailers. §1108. 



Article 8. Jury commissioner! and clerks. 

§1100. 
Article 9. Justices of the peace, oil 10. 
Article 10. Constables, oil 11. 
Article 11. Coroners. 61112. 
Article 12. Ordinaries. §1113. 
Article 13. Witnesses from other counties, 

and when venue is changed. 

§§1114-1119. 



COUNTY JAILS. 

Article 1. Duties of jailer. §§1120-1129. I Article 2. Jails in certain counties. §§1130- 

1136. 



MISDEMEANOR CONVICTS. 



Article 1. How disposed of . §§1137-1145. 
Article 2. Whipping-bosses. §§1146-1149 






Article 3. Time shortened for good beha- 
vior. §1150. 



THE PENITENTIARY. 



Article 1. Leasing out and control of con- 
victs, duties of lessees, officers, 
etc. §§1151-1186. 



Article 2. Convicts produced as witnesses. 
§§1187-1191. 



REFORMATORY PRISONS. 
Article 1. How established, the purpose, and their management. §§1192-1208. 

SPECIAL QUASI CRIMINAL PROCEEDINGS. 
Habeas Corpus. 
Article 1. Proceedings in applications for habeas corpus. §§1209-1234. 

Warrants for Good Behavior, and to Keep the Peace. 
Article 1. The warrant and proceedings thereon. §§1235-1242. 

Search- Warrants, and Proceedings Thereon. 



Article 1. The warrant and proceedings. §§1243-1247. 



CONTEXTS. 



SPECIAL QUASI CRIMINAL PROCEEDINGS.-pContinued, 

Proceedings in Bastardy. 

Article 1. Proceedings against the mother, bond for maintenance of the child, etc. 
§$1248-1254. 

Coroner's Inquests. 
Article 1. When inquests shall be held, and proceedings. §§1255-1269. 

Fugitives from Justice. 

Article 1. Arrest within this State, and pro- j Article 2. Kules for granting a requisition 
ceedings. §§1270-1274. by the Governor. §§1275-1277. 



SECTIONS OK CODE OF 1882. 



XI 



A TABLE SHOWING WHERE SECTIONS OF THE COD? OF 1882 MAY BE 

FOUND IX THIS CODE. 



Number of Section 


Number of Section 


Number of Section 


Number of Section 


in Code of 1882. 


in this Code. 


in Code of L882. 


in this Code. 


4 


1 


308 


746 


5 


2 


309 


768 


6 


3 


310 


741 


7 


4 


317(c) 


744 


10 


5 


356 


1120 


20 


21 


357 


1121 


21 


22 


361 (7,8,9) 


1127 


35 


23 


366 


1128 


36 


24 


366 (a) 


1125 


37 


25 


366 (b) 


1126 


53 


1270 


369 (3, 4) 


880 


54 


1271 


377(1,2,3,4,5,6,7,8) 


798 


55 


1272 


373 


799 


56 


1273 


379 


800 


57 


1274 


380 


801 


58 


881 | 

270 


381 


802 


146 


382 


803 


156 


272 


383 


804 


218 


1068 


384 


805 


244 


1030 


385 


806 


245 


1031 


386 


807 


246 (4) 


791 


437 


731 


247 


792 


445(1,2,3) 


732 


267 (5) 


797 


448 


733 


282 


735-737* 


491 


876 


283(d) 


749 


493 (d) 


279 


297 


737,746,750,751,752 


500 


725 


298 


756, 757 


504 


841 


298 (a) 


772 


508 (b) 


845 Note 


299 


751,753,754,755,758, 


561 


276 




759, 760 


562 


276 


299 (a) 


751 


581 


278 


299 (b) 


761 


587 


1122 


299 (c) 


762 


590 


1258 


299 (d) 


749 


591 


417 


299 (e) 


743 


595 


1080 


299 (f) 


748 


596 


126S 


300 


769,770,771,773,774, 


635 


532 




775 


650 


533 


301 


745, 763, 764 


683 


554 


302 


765, 766 


687 


555 


303 


767 


688 


556 


304 


739 


693 


557 


305 


740 


694 


55S 


306 


738 


709 


516 


307 


742 


710 


517. 518 



X 



SECTIONS OF CODE OF 1882. 



Number of Soot ion 


Number of Section 


Number of Section 


Number of Section 


in Code of L882. 


in this Code. 


in Code of 1882. 


in this Code. 


772 


643 


1549 


654 


ra (c) 


927 


1550 


655 


792 


734 


1551 


655 


809(g) 


430 


1552 


656 


- (m) 


845 Note. 


1561 


612 


838 


264 


1562 


612 


906 


251 


1563 (3) 


615 


916 


273 


1563 (10) 


616 


922 


274 


1564 


617 


923 (f) 


833 


1564 (a) 


614 


935 (a) 


846 


1565 


227 


943 (b) 


201 


1566 


228 


1103 (v) 


202 


1579 


609 


1103 (y) 


345 


1579 (a) 


606 


1103 (z) 


360 


1579 (d) 


607 


1142 


346 


1579 (e) 


608 


1144 


347 


1579 (h) 


609 


1263 (a) 


836 


1582 


476 


1288 


622, 624 


1583 


477 


1289 


623 


1585 


478 


1290 


843 


1587 


479 


1331 


636 


1594 


539 


1355 


1182 


1595 


537 


1369-1371 


1183-1185 


1596, 1597, 1598. 


538 


1374 


952 


1599 


271 


1374 (a) 


437 


1600 


271 


1376 


501 


1622 


575 


1378 


502 


1623 


575 


1380 


503 


1624 


576 


1381 


504 


1625 


576 


1382 


505 


1626 


928 


1383 


506 


1627 


644, 645 


1384 


498 


1628 


645 


1385 


507 


1647 


1100 


1386 


499 


1646 


1099 


1409 re) 


485 


1646 (a) 


1099 


1416 


488 


1649 


1101 


1417 


489 


1650 


1099 


1420 


432 


1672 (f) 


877 


1423 


443 


1796 


74 


1436 


567 


1938 


678 


1453 


566 


1978 


668 


1 455 (c) 


7J6 


2123 


603 


1456-1459 


229-232 


2220 


170 


1465 (n) 


582 


2346 


419 


1465 (o) 


583 


2675 


16 


1465 (p) 


584 . 


3242 


794 


.1537 


646 


3243, 3244 


795 


1543 


649 


3245 


796 


1544 


650 


3248 


1032 


1546 


651 


3249 


846 


1547 


652 


3522 


962 . 


1548 


653 


3523 


963 



SECTIONS OF CODE OF 1882, 



;•: j ] ] 



Number of Section 


Number of Section 


Number of Section 


Number of 6 


in Code of 1882. 


in this Code. 


in Code of 1882. 


in this Code. 


3525 


964 


3839 


1016 


3528 


965 


3846 


917 


3531 


966 


3847 


918 


3561 


1033 


3848 


919 


3682 


1079 


3849 


1225 


3695 


1106 


3854 (2, 3, 4) 


1011 


3696 


1107 


3856 


1012 


3698 


1108 


3857 


1013 


3699 


1110 


3858 


1014 


3700 


1111 


3863 


1017 


3700 (a) 


302 


3864 


1018 


3700 (b) 


302 


3865 


1019 


3701 


1112 


3866 


1020 


3704 (b) 


303 


3867 


1021 


3704 (d) 


304 


3868 


1022 


3710 


1098 


3869 


1024 


3713 


1057 


3871 


1025, 1026, 1027 


3714 


1059 


3872 


1026 


3715 


1060 


3873 


1027 


3716 


1061 


3874 


1027 


3717 


1058 


3875 


1026 


3718 


1062 


3876 


1023 


3719 


1063 


3906 


811 


3721 


1064 


3910 (a) 


813 


3723 


1065 


3910 (b) 


814, 815, 1109 


3724 


1066 


3910(c) 


816, 1109 


3747 


982 


3910 (d) 


818 


3748 


983 


3910 (e) 


819 


3749 


986 


3910 (f) 


820 


3752 


988 


3910 (g) 


821 


3754 


990 


3911 


822 


3755 


991 


3911 (a) 


817 


3757 


993 


3912 


823 


3758 


994 


3913 


824 


3759 


995 


3914 


812, 829 


3769 


996 


3914 (a), 3914(b) 


860, 861 


3771 


997 


3915 


825 


3773 


998 


3916 


828 


3775 


999 


3917 


830 


3781 


1000 


3918 


831 


3782 


1001 


3919 


835 


3783 


1002 


3920 


836 


3790 


1003 


3921 


837 


3791 


1004 


3922 


838 


3792 


1005 


3923 


839 


3793 


1006 


3925, 3926 


848 


3794 


1007 


3927 


849 


3795 


1008 


3929 


878 


3796 


1009 


3931 


852 


3797 


814, 826 


3932 


853. S54 


3799 


815, 827 


3933 


856 


3845 


1114-1118 


3934 


857 


3816 


1015 


3935 


858, 859 



XIV 



SECTIONS OF CODE OF 1882. 



Number of Section 
in Code of L882. 



Number of Soot ion 
in this Code. 



Number of Section 
in Code of 1882. 



Number of Section 
in this Code. 



3996 
3937 

3939 
3940 
394] 
394] (a) 

3941 (b) 

3942 

3943 

3945 

3947 

4009-4023 

4024-4031 

4101 

4102 

4104 

4105 

4106 

4107 

4108 

4109 

4110 

42-50 

4251 

4261 

4263 

4284 

4292 

4293 

4294 

4295 

4296 

4297 

4298 

4299 

43'/) 

4301 

4302 

4303 

4304 

4305 

4306 

4307 

4308 

4309 

4310 

4311 

4312 

4313 

4314 

4315 

4316 



862 


4317 


57 


863 


4318 


58 


864, 865 


4319 


59 


867 


4320 


60 


872, 873 


4321 


61 


868 


4322 


62 


869 


4323 


63 


870 


4324 


64 


871 


4325 


65 


832 


4326 


66 


875 


4327 


67 


879 


4328 


68 


1210-1224 


4329 


69 


1226-1234 


4330 


70 


1259 


4331 


71 


1260 


4332 


72 


1261 


4333 


73 


1262 


4334 


75 


1263 


4335 


76 


1264 


4336 


77 


1265 


4337 


78 


1266 


4337 (a) 


80 


1269 


4337 (b) 


81 


1069 


4337 (c) 


82 


1070 


4338 


79 


1076 


4339 


83 


1077 


4340 


84 


1068 


4341 


85 


31 


4342 


86 


32 


4343 


87 


33 


4344 


88 


34 


4345 


89 


35 


4346 


90 


36 


4347 


91 


37 


4348 


92 


951 


4349 


93 


38 


4350 


94 


39 


4351 


98 


40 


4352 


382 


41 


4353 


383 


2 


4354 


384 


42 


4355 


385 


44 


4356 


386 


45 


4357 


95 


47 


4358 


96 


43, 46 


4359 


97 


48, 1039 


4360 


99 


49 


4361 


100 


50 


4362 


101 


51,53 


4363 


102 


54 


4364 


106 


55 


4365 


107 


56 


4366 


108 



SECTIONS OF CODE OK 1882. 



XV 



Number of Section 


N urn her of Section 


Number of Section 


Number of Section 


in Code of 1882. 


in this Code. 


in Code Of 1882. 

■ 


in thin Code. 


4367 


109, 111 


4419 


185 


4368 


110, 111 


4419 (a) 


186 


4369 


112 


4420 


217 


4370 


113 


4421 


187, 188 


4371 


387, 388 


4422 


101, 192 


4372 


396, 397 


4423 


m 


4373 


114 


4424 


194 196 


4374 


135 


4425 


197 


4375 


136 


4425 (a) 


198 


4376 


137 « 


4425 (b) 


199 


4377 


138 


4426 


204 


4377 (a) 


139 


4427 


205 


4378 


140 


4428 


206 


4379 


141 


4428 (a) 


207 


4380 


142 


4429 


208 


4381 


143 


4430 


209 


4382 


144. 


4431 


210 


4383 


145 


4432 


211 


4384 


146 


4433 


215 


4385 


147 


4434 


216 


4386 


149 


4435 


189 


4388 


150 


^4435 (a) 


200 


4389 


151 


4436 


218 


4390 


152 


4437 


519 


4391 


153 


4438 


520, 521 


4392 


154 


4439 


727 


4393 


155 


4440 


219 


4394 


156 


4441 


221 


4395 


157 


4442 


233, 234 


4396 


158 


4443 


235 


4396 (a) 


225 


4444 


236 


4397 


159 


4445 


237 


4398 


160 


4446 


238 


4399 


161 


4447 


239 


4400 


162 


4448 


240 


4401 


163 


4449 


241 


4402 


164 


4450 


242 


4403 


165 


4451 


243 


4404 


226 


4452 


244 


4405 


166 


4453 


245 


4406 


167 


4454 


246 


4407 


169 


4455 


247 


4408 


173 


4456 


248 


4409 


174 


4457 


249 


4410 


175 


4458 


846 


4411 


176 


4460 


256 


4412 


177 


4461 


257 


4413 


178 


4462 


258 


4414 


179 


4463 


259 


4415 


180 


4464 


260 


4416 


181 


4465 


261 


4417 


182 


4468 


262 


4418 


183 


4469 


267 



XVI 



SECTIONS OF COPE OF 1882. 



Number of Section 


Number of Section 


i 
Number of Section 


Number of Section 


in Code of L882. 


in this Code. 


in Code of 1882. 


in this Code. 


4470 


268 


4517 


349 


4470 (a) 


269 


4518 


350 


4471 


280 


4519 


351 


4472 


281 


4520 


352 


4473 


282 


4521 


335 


4474 


283 


4522 


336 


44 7-^ 


305 


4523 


337 


4476 


306 


4524 


338 


4477 


2S4 


4525 


339 


447S 


308 


4526 


340 


4479 


309 


4527 


341 


4480 


310 


4528 


342 


448 1 


311 


4528 (a) 


343 


4482 


312 


4529 


375 


4483 


313 


4530 


376 


83 (a) 


314 


4531 


377, 378 


44>3 (b) 


315 


4532 


379 


4484 


316 


4533 


380 


4485 


317 


4534 


381 


4486 


285 


4535 


390 


4486 (a) 


319 


4536 


391 


4486 (b) 


320 


4537 


392 


44s7 


286 


4537 (a) 


394 


4488 


171 


4537 (b) 


395 


4489 


172 


4538 


398 


4490 


321 


4539 


399 


4490 (a) 


322 


4540 


400 


4491 


323 


4540 (a) 


444 


4492 


324 


4540 (b) 


344 


4493 


287 


4540 (c) 


445 


4494 


288 


4541 


401 


4495 


289 


4542 


402 


4496 


290 


4543 


413 


4497 


118 


4544 


403 


4498 


119 


4545 


404 


4499 


120 


4546 


846 


4500 


121, 122 


4547 


405 


4501 


325 


4549 


406 


4502 


325, 327 


4549 (b) 


407 


4503 


328 


4549 (c) 


408 


4504 


291, 292 


4549 (d) 


409 


4506 


293-295 


4550 


466 


4506 


117 


4551 


467 


4507 


298 


4556 


610 


4508 


299 


4557 (a) 


470 


4508(a) 


300 


4557 (b) 


471 


1509 


334 


4557 (c) 


472 


4510 


329 


4557 (d) 


473 


4511 


330 


4558 


500 


4513 


&53 


4559 


507 


4514 


354 


4560 


453 


4515 


355 


4561 


640 


4516 


348 


4562 


641 



SECTIONS OF CODK OF 1882. 



XV i: 



Number of Section 


Number of Section 


Number of Section 


Number of Section 


in Code of 1882. 


in this Code. 


in Code of 1882 


in thil Code 


4562 (a) 


486 


4604 


902 


4562 (b) 


542 


4604 (a) 


891 


4562 (c) 


543 


4601 (h) 


691 


4562 (d) 


544 


4605 


092 


4562 (e) 


545, 546 


4606 


092 


4562 (f) 


570 


4607 


894 


4562 (g) 


277 


4608 


896-697 


4563 


415 


4609 


698 


4564 


642 


4610 


999 


4565 


431 


4611 


700 


4566 


637 


4611 (a) 


701 


4567 


638 


4611 (b) 


701 


4568 


627 


4612 


702 


4568 (a) 


629 


4612 (a) 


703 


4569 


629 


4612 (c) 


889 


4570 


446-448 


4612 (d) 


704 


4571 


628 


4612 fe) 


705 


4573 


104 


4612 (f) 


706. 707 


4574 


418 


4612 (h) 


708 


4575 


434, 435 


461^ 


709 


4576 


426 


4614 


710 


4577 


905 


4615 


713 


4577 (a) 


427 


4616 


714 


4577 (b) 


436 


4617 


715 


4578 


420. 421 


4618 


717 


4579 


422 


4619 


718 


4580 


423 


4620 


719 


4581 


424 


4621 


720 


4583 


454 


4622 


721 


4584 


455 


4623 


722 


4585 


522-524 


4624 


723 


4585 (2d) 


514 


4625 


577 


4586 


525 


4625 (a) 


580 


4586 (a) 


902 


4625 (b) 


578 


4586 (b) 


115 


4625 (c) 


579 


4587 


658 


4625 (d) 


562 


4588 


659 


4625 (e) 


724 


4589 


660 


4626 


726 


4590 


661 


4627 


729 


4591 


662 


4628 


929 


4592 


663 


4629 


955 


4593 


664 


4630 


1082 


4594 


665 


4631 


1086. 1087 


4595 


670 


4632 


931 


4596 


666 


4633 


944 


4597 


667 


4634 


945 


4598 


600 


4635 


945 


4598 (b) 


601 


4636 


946 


4599 


669 


4637 


1010 


4600 


671 


4638 


947 


4600 (a) 


672 


4639 


950 


4602 


679 


4640 


948 


4603 


681 


4641 


949 



xvm 



SECTIONS OF CODE OF 1882. 



Number of Section 

in Code oi L882. 



Number of Section 
in this Code. 



4643 
4643 

4644 
4045 
4646 
4646 (a) 

4647 

4648 

4649 

4650 

4651 

4652 

4653 

4654 

4655 

4655 (a) 

4655 (b) 

4655 (c) 

4655 (d) 

4655 (e) 

4655 (f) 

4655 (g) 

4655 (h) 

4656 

4657 

4658 

4659 

4660 

4661 

4662 

4664 

4665 

4666 

4666 (a) 

4666 (b) 

4666 (c) 

4666 (d) 

4667 

4668 

4669 

4670 

4671 

4672 

4673 

4674 

4675 

4676 

4677 

4678 

4679 

4680 

4681 

4682 



943, 944 
974 
857 
1029 

1033, 1055 

1034 

961 

958 

957 

979 

980 

834 

1041 

1085 

1084 

1089 

1090 

1091 

1092 

1093 

1094 

1095 

1096 

1037 

1054 

1053 

318 

1052 

17 

1043 

18 

30 

1047, 1049 

1048 

1048 

1049 

1186 

1045 

1046 

1044 

26 

27 

28 

953 

19 

1035 

1042 

331 

970 

971 

972 

973 

975 



Number of Section 
in Code of 1882. 



4683 

4684 

4685 

4686 

4688 

4689 

4690 

4691 

4692 

4693 

4694 

4695 

4696 

4696 (a) 

4696 (b) 

4697 

4698 

4699 

4700 

4702 

4703 

4706 

4707 

4708 

4709 

4709 (a) 

4709 (b) 

4709 (c) 
4710 

4710 (a) 
4712 
4713 
4714 
4715 
4716 
4717 
4718 
4719 
4720 
4721 
4722 
4723 
4724 
4725 
4726 
4727 
4728 
4729 
4730 
4731 
4732 
4733 
4734 



Number of Section 
in this Code. 



976 

977 

978 
29 
1129 
1083 
1119 
1050 

969 

967 

103 
1047 

981 

810 
1104 
1038 
1173 
1078 
1081 

936 

937 

956 

301 

930 

842, 1086, 1087 
1088 

925 
1088 

942, 959, 960 

797 
1040 

882 

883 

884 

885 

886 

897 

887 

888 

898 

895 

896 

900 

901 

899 

932 

893 

894 

906 

907 

908 

910 

911 



SECTIONS OF CODE OF \HH2. 



xix 



Number of Section 


Number of Section 


Number of Section 


Number of Section 


in Code of 1882. 


in this Code. 


in Code of 1882. 


in this Code. 


4735 


915 


4757 


1 243 


4736 


909 


4758 


1244 


4737 


916 


4759 


1245 


4738 


912 


4760 


L246 


4739 


914 


4761 


1247 


4740 


920 


4762 


1348-1260 


4741 


921 


4763 


1251, 1252 


4742 


922 


4764 


1 254 


4743 


923 


4765 


L253 


4744 


913 


4812 


1174 


4745 


924 


4813 (a)-4813 (r) 


1151-1169 


4746 


935 


4813 (s) 


1175 


4747 


933, 934 


4814 


1137 


4748 


926 


4815 


1138, 1139 


4749 


1235 


4821 (d) 


1140 


4750 


1236 


4821 (e) 


1141 


4751 


1237. 


4821 (f) 


1142 


4752 


1238 


4821 (g) 


1177 


4753 


1239 


4821 (h) 


1178, 1179 


4754 


1240 


4821 (i) 


105, 1170, 1171 


4755 


1241 


4821 (j) 


1172 


4756 


1242 







XX 



LAWS PASSED FROM 1882 TO 1895. 



A TABLE SHOWING WHERE LAWS PASSED FROM THE YEAR 1882 TO 1895, 
INCLUSIVE. MAY BE FOUND IN THIS CODE. 



Year. 



Page. 



This Code Section. 



1882-3 



1884-5 



48 

48 

51 

55. 56 

57 

60 

62 

66 

72 

73 

82 

92 

94 

98 

99 
101 
106 
111 
118 
121 
124 
125 
126 
128 
129 
130 
131 
132 
134 
137 
140 
147 

41 

43 

45 

50 

52 

52 

59 

60 

62 

63 

67 

74 



316 

341 

566 

797 

121, 122 

121. 122 

431 

420 

695, 697 

221 

297 
1180, 1181 

776. 1088 

798 Note. 

866 

266, 814, 816 
1187, 1191 

673, 674 

549 

220 

547, 548 

250 

846 

468. 469 

564, 565 

442 

508 

184 

552 

515 

630 

563 

862 

879 

539 
1212 

314 

539 

398 

432 

486, 487, 846 

863 

845 Note 

360-374,728,864,867 
892 



Year. 



1884-5 



1886 

1887 



1888 
1889 



Page. 



89 

90 

92 

93 

94 

102 

103 

121 

125 

125 

128 

130 

131 

134 

137 

141 

470 

30 
38 
21 
30 
31 
33 
37 
38 
42 
52 
53 
58 
58 
61 
87 
94 
97 
99 
102 
103 
107 
110 
122 
46 
35 

47 
52 



This Code Section. 



1150 

866 

1257 



867 

867 

296 

446,451,631 

553 

203 

536 
1104 

512, 513 

475 

490, 491 
1275, 1277 

777-790, 1102, 1103. 
1107, 1212 

380 

647, 648 

450 
1011 

815 

878 

671 
1173 

446, 448 

813 

811 

116 

793 

148 

414-416 

212, 213 

474 

571-575 

840 

496 

123-126 

618-621 

597, 598 

116 

275 
1123, 1124 

554 



LAWS PASSED FROM \HH2 TO 1895. 



xxi 



Year. 


Page. 


Tli is Code Section. 


Year. 


Page. 


Thii Code Section. 


1889 


83 


1063 


1890-91 


210 


682-635 




84 


820 




211 


1 146-1 M9 




89 


481-484 




212 


1007 




101 


776, 1088 




213 


039 




105 


1143 




213 


586 




109 


190 




214 


591, 592 




113 


680 




219 


807 




114 


1071-1074 




220 


332, 333 




118 


859 




222 


613 




119 


1067 




223 


808, 809, 1105 




120 


938 




224 


675-677 




134 


682-684 




225 


412 




140 


443 




225 


874 




143 


586-590 




228 


509 




149 


497 




230 


903, 904 




149 


1157 Note. 




233 


263 




150 


496 . 




236 


550, 551 




154 


497 




237 


559, 560 




156 


847 




242 


492 




164 


412 


1892 


61 


818 




167 


127 




89 


265 




168 


510 




94 


1144, 1145 




170 


550, 551 




100 


222-224 




179 


425 




102 


642 




187 


410, 411 




107 


777, 1102, 1107 


1890-91 


62 


745, 764 




108 


511 




66 


734 




109 


559, 560, 830 




72 


668 




111 


685-690 




74 


796 




115 


680 




79 


837 


1893 


38 


1114-1118 




80 


872 




39 


388, 389, 1113 




83 


396, 397 




40 


189 


« 


83 


153 




41 


1043 




84 


167 




56 


961 




85 


173 




57 


785, 788 




85 


579 




66 


214, 593 




86 


1174 




111 


1267 




96 


777, 1102, 1107 




115 


428, 429 




98 


747 




116 


1255-1257 




108 


1075 




120 


1192-1208 




128 


433 




127 


568, 569 




129 


438-441 




128 


356-359 




130 


449 




130 


730 




131 


452 




133 


168 




132 


434, 435 




133 


581 




133 


434, 435 




134 


252-255 




134 


534, 535 


1894 


34 


657 




138, 141 


604, 605 




42 


576 




143 


611 




48 


1107 




157 


526-531 




49 


1115 




176 


595, 596 




52 


658 




183 


128-134 




66 


420 


1 


204 


845 




77 


594 



X.X11 



LAWS PASSED FROM 1882 TO 1895. 



Year. 


Page. 


This Code Section. 


Year. Page. 


This Code Section. 


L894 


88 


485 


1895 


64 


326, 327 




103 


561 




65 


540, 541 




L06 


711. 712 




66 


393 




LOO 


599 




66 


456-465 




121 


6:?5. 628 




69 


307, 844 


1806 


22 


201 




70 


29, 939-941, 1083 




25 


668 




74 


872 




33 


579 




75 


568 




34 


898 




80 


1159 




41 


968 




81 


1130-1136 




63 


1036, 1039 




86 


493-495 



THE PENAL CODE. 



CRIMES AND THEIR PUNISHMENT. 



PRELIMINARY PROVISIONS. 

§1. (4.) Construction of statutes. The following rules shall govern 
the construction of all statutory enactments : 

1. The ordinary signification shall be applied to all words, except 
words of art, or connected with a particular trade or subject-matter, 
when they shall have the signification attached to them by experts 
in such trade, or with reference to such subject-matter. 

The word "game" is to be understood in its ordinary signification : 89 Ga. 
341. Sunday and Sabbath day, synonymous: 89 Ga. 342. Cited: 90 Ga. 458. 

When a specific enumeration concludes with a general term, it is held to be 
limited to things of the same kind, unless there be something to show that a 
wider sense was intended : 86 Ga. 719, 720. 

2. The present or past tense shall include the future. 

3. The masculine gender shall include the feminine and neuter. 
Cited : 86 Ga. 369, 635. 

4. The singular or plural number shall each include the other, 

unless expressly excluded. 

The use of the plural instead of the singular personal pronoun will not viti- 
ate an indictment: 88 Ga. 784. 

5. A joint authority given to any number of persons, or officers. 
may be executed by a majority of them, unless it is otherwise 
declared. 

Applied to drawing jury : 69 Ga. 68 ; 74/812 ; 90/133. 

6. A substantial compliance with any requisition of the Code, or 
laws amendatory thereof, especially on the part of public officers. 
shall be deemed and held to be sufficient, and no proceeding shall be 
declared void for want of such compliance, unless so provided by the 
enactment. 

Applied to drawing grand jury : 78 Ga. 179. 

8. When a number of days is prescribed for the exercise of any 

privilege, or the discharge of any duty, only the first or last day 

i 



|§2-4 PRELIMINARY PROVISIONS. 



shall be counted; and if the last day shall fall on the Sabbath, 
another day shall be allowed in the computation. 

9. In all interpretations, the courts shall look diligently for the 
intention of the General Assembly, keeping in view, at all times, the 
old law. the evil, and the remedy. Grammatical errors shall not viti- 
ate, and a transposition of words and clauses may be resorted to when 
the sentence or clause is without meaning as it stands. 

Repeal of the punishment clause does not repeal the Act : 23 Ga. 10. When 
two statutes impose different penalties for the same offense, the earlier is 
repealed : 28 Ga. 87. 

Penal laws are to be construed strictly, but not so as to defeat the obvious 
intention of the legislature: 3 Ga. 18; 29/616; 34/455; 33/229; 38/571; 48/36, 
510; 69/444; 71/597; 85/365; 87/687; 91/694. 

§2. (5.) Meaning of certain words. The following meaning shall 
be given to each of the following words in all statutes, unless a dif- 
ferent meaning is apparent from the context : 

Property includes real and personal property. 

Person includes a corporation and persons of color. 

Writing includes printing and all numerals. 

Oath includes affirmation. 

Signature, or Subscription, includes the mark of an illiterate or 
infirm person. 

Lunatic, Insane, or Non compos mentis, each includes all persons of 
unsound minds. 

Justice, when applied to magistrates, means justice of the peace. 

Preceding and Aforesaid mean generally next before, and Following 
next after, unless the context requires a different signification. 
Cobb, 536. Month means a calendar month. 

Year means a calendar year. 

Seal shall include impressions on the paper itself, as well as 
impressions on wax or wafers. With the exception of official seals, 
a Scrawl, or any other mark intended as a seal, shall be held as such. 

Highway, or Road, includes bridges upon the same. 

(4804.) The term felony means an offense, for which the offender, 
on conviction, shall be liable to be punished by death or imprison- 
ment in the penitentiary, and not otherwise. 

58 Ga. 203; 39/85. 

Every other crime is a misdemeanor. 

§3. (6.) Future operation of laws. Laws prescribe only for the 
3, par. -2. future. No bill of attainder or ex post facto law shall be passed. 
Laws looking only to the mode of trial may apply to offenses com- 
mitted prior to their passage. 

§4. (7.) Ignorance of law. Laws, after promulgation, are obliga- 
tory upon all inhabitants of this State, and ignorance of the law 
excuses no one. 

Cited: 30 Ga. 385; 65/158. 



3 PRELIMINARY PROVISIONS. 



sec. 



sec. 



§5. (10.) Waiver of law. Laws made for the preservation of 

public order, or good morale, can not be done away with or abro- 
gated by any agreement,; but a person may waive or renounce what 
the law has established in his favor, when lie does not, thereby in- 
jure others, or affect the public interest. 

Public policy is the only limitation on the right, and accused may waive 
trial and every minor right: 28 Ga. 576; 70/264; 86/270; 88/735. Waiving 
trial in city court does not affect public interest: 86 Ga. 266. May be done 
by silence and conduct: 63 Ga. 168; 88/735. Waiver of right to be present 
when jury is recharged, must be clear and distinct: 51 Ga. 567. Giving vol- 
untary bail bond on Sunday is a waiver of a legal hearing : 62 Ga. 449. Defect- 
ive pleadings may be waived : 71 Ga. 44. Waiver of the array : 62 Ga. 731 ; 
72/269; 88/731. 

Jurisdiction must be expressly waived : 29 Ga. 424 ; 39/719 ; 43/220. 

§6. (4995.) Life, liberty, and property. No person shall be de~°°jy*" 
prived of life, liberty, or property, except by due process of law. i, par. 3. 

§7. (4996.) Right to the courts. No person shall be deprived of°°J* 8 *-« 
the right to prosecute or defend his own cause in any of the courts *• P ar - 4 
of this State, in person, by attorney, or both. 

§8. (4997.) Benefit of counsel, accusation, list of witnesses, compul- c £J? t s, v* 
sory process and trial. Every person charged with an offense against 1. p» r -5 
the laws of this State — 

1. Shall have the privilege and benefit of counsel. 

2. Shall be furnished, on demand, with a copy of the accusation, 
and a list of the witnesses on whose testimony the charge against 
him is founded. 

3. Shall have compulsory process to obtain the testimony of his 
own witnesses. 

4. Shall be confronted with the witnesses testifying against him, 
and 

5. Shall have a public and speedy trial by an impartial jury. 

If a person charged with an offense is too poor to employ counsel, the court 
will appoint counsel for him without charge, and the same duties and respon- 
sibilities rest upon counsel thus appointed as if he received pecuniary com- 
pensation : 51 Ga. 568. 

If defendant declines the offer of the court to furnish counsel, there is no 
violation of this provision : 73 Ga. 816. 

Counsel should have a reasonable time to prepare the defense: 76 Ga. 2SS. 

When defendant'^ counsel fully cross-examines, the court may decline to 
allow defendant to ask other questions: 14 Ga. 18. 

Neglect of counsel, as a general rule, affords no ground for a new trial: 
76 Ga. 727. 

When compulsory process is granted to obtain the presence of a witness in 
the penitentiary, it is error for the court to decline to order an officer to exe- 
cute the process : 72 Ga. 673. 

The right to be confronted with the witnesses is coeval with the common 
law- 11 Ga. 374. 

The right to trial by jury does not apply to a trial for violation of municipal 
ordinance: 72 Ga. 319; 4/509; 14/354. 



8§9-U PRELIMINARY PROVISIONS. 



Art. L8M 



§9. (4998.) Crimination of self not compelled. No person shall be 
i. par. compelled to give testimony tending in any manner to criminate 

himself. 

See section 1011. 

^SJiJaec. ^ 1() - (4999.) Banishment, whipping. Neither banishment beyond 
L,par.7. t ] 1(l 1 imits of the State, nor whipping, as a punishment for crime, 

shall be allowed. 
< iKt!i t *8ec. 8^1 ■ (5000.) Jeopardy of life, etc. No person shall be put in 
i, par. 8. jeopardy of life or liberty more than once for the same offense, save 

on his or her own motion for a new trial, after conviction, or in case 

of mistrial. 

It was a maxim of the common law that a man should not be twice put in 
jeopardy for the same offense : 36 Ga, 447 ; 91/833. 

Jeopardy begins when the jury are impaneled and sworn: 2 Ga. 60; 3/53; 
55/521 ; 85/571. 

When an issue is formed, and one juror is impaneled and sworn, the case 
is submitted and jeopardy begins: 34 Ga. 323; 70/145. 

There must be an issue between the State and accused : 34 Ga. 324. 

The indictment or accusation must be good against a motion in arrest of 
judgment: 85 Ga. 348; 36/447. 

The court must have jurisdiction : 79 Ga. 324. 

When a conviction of the minor offense may be had on an indictment for 
the major, plural jeopardy as to the minor is no less obnoxious than like 
jeopardy as to the major : 85 Ga. 574. 

The plea should set forth the former record, including the former indict- 
ment, so that it could appear therefrom, and by proper averments in the plea, 
that it was the same offense: 47 Ga. 568; 68/827; 81/629; 80/255; 26/579. 

It involves two matters: the former indictment and conviction, and the 
identity of the person convicted, and of the offense for which he was formerly 
convicted, with that for which he is on trial: 16 Ga. 468 ; 25/476 ; 78/99. It is 
not ready for final adjudication until traversed or demurred to : 80 Ga. 255. 

The plea is sufficient whenever the proof shows the second case to be the 
same transaction as the first : 14 Ga. 12 ; 38/187. And when the prisoner might 
have been convicted on the first indictment by the evidence necessary to 
support the second: 14 Ga. 8; 15/266; 38/187. 

If the evidence required to convict under the first indictment would not be 
sufficient to convict under the second indictment, but proof of an additional 
fact would be necessary to constitute the offense charged in the second, the 
former conviction or acquittal would not be a bar: 81 Ga. 629. 

The plea was good which averred that the transactions were the same, 
although the former indictment alleged the ownership of the house and of the 
goods stolen to be in one person, and the second indictment alleged a different 
ownership, and a different day : 70 Ga. 752 ; 89/259; 73/804; 81/632; 64/504. 

A conviction of burglary is a bar on a trial for robbery, if the robbery con- 
stituted part of the same transaction, and the circumstances of the robbery 
were put in proof to make out the burglary : 15 Ga. 264. 

A conviction in a city court was a bar to a trial on a previously found 
indictment in the superior court: 49 Ga. 375; 53/450. 

A trial for simple larceny in one county will be a bar to a trial in another: 
14 Ga. 422. 

After a prisoner was committed to answer a charge in the superior court 
but before incarceration, he was fined for the same offense in the county 
court ; it was a bar : 72 Ga. 129. That defendant was put on trial for the same 



PRELIMINARY PROVISIONS. g VI 



transaction, on a valid indictment, and the case; nol. pros' d and withdrawn 
without his consent, was a bar: 55 Ga. 625. 

When on the trial in the county court, the judge withdrew the case and 
bound the defendant over to the superior court for a felony, it was not a bur: 

80 Ga. 4. 

Acquittal for assault and battery in a State court, not a bar to a prosecution 

for disorderly conduct in a municipal court, though the transaction be the 
same: 59 Ga. 168. Acquittal for fornication with mother of a bastard child, no 
bar to prosecution for bastardy: 58 Ga. 170. 

Conviction of unlawful sale of liquor to a minor, no bar to prosecution for 
retailing: 81 Ga. 629; 89/259. 

If at same time and place one person was killed and another assaulted, an 
acquittal of the former offense, hardly a bar to the latter: 65 Ga. 94. 

When, during the same difficulty, defendant assaulted two persons, and 
pleaded an acquittal of one in bar of prosecution for the other, the intent with 
which the assaults were made was for the jury : 47 Ga. 568. A conviction of a 
sale of oil to one person, not a bar to a prosecution for a subsequent sale to 
another person : 66 Ga. 160. 

If, after the jury has been impaneled, and before evidence has been sub- 
mitted, the solicitor discovers that one of the jurors was disqualified, the court 
may withdraw the juror, and continue the case, and it will not be a bar: 
51 Ga. 402. 

The court overruled the plea in bar, but allowed evidence on the trial to 
show whether it was the same transaction : 64 Ga. 504. 

Where a mistrial has been properly declared, the prisoner may be tried 
again : 80 Ga. 256. 

Two reasons are recognized as justifying the discharge of the jury before 
they have agreed upon and returned a verdict, to wit: The prisoner's consent, 
or necessity in some of its various forms, one of which is mistrial: 14 Ga. 426 ; 
15/562; 23/1; 33/329; 2/60; 55/521; 91/833. 

After being charged with the case the jury can be discharged and the pris- 
oner tried a second time, for the following causes only: The consent of the 
prisoner; illness of one of the jury, the prisoner, or the court ; absence of one 
of the jurymen ; or the impossibility of their agreeing on a verdict : 3 Ga. 69 ; 
14/426; 15/563. 

At what time and under what circumstances the court will discharge the 
jury from further consideration of the case, is a question left much in its own 
discretion : 23 Ga. 1 ; 26/233 ; 80/255. And. such a discharge does not operate 
as an acquittal: 33 Ga. 329. 

When a verdict of guilty was received and the jury discharged without 
prisoner's consent and without necessity whilst he was absent in jail, and the 
verdict was set aside on his motion, the jeopardy would be a bar: 55 Ga. 521. 

Prisoner may be tried again, when, at his instance, a judgment has been 
arrested on a good indictment for want of jurisdiction : 63 Ga. 386. 

''Juror withdrawn, mistrial declared," means that the discharge of the jury 
was with the consent of the defendant by agreement of counsel : 14 Ga. 426. 

The parties agreed that the jurors might separate ; one of them did not 
return, and the judge ordered a mistrial: 15 Ga. 562. 

§12. (5001.) Bail, fines, punishments , arrests. Excessive bail shall 9?2?V« 

not be required, nor excessive fines imposed, nor cruel and unusual *»P*'«fc 
punishments inflicted; nor shall any person be abused in being ar- 
rested, while under arrest, or in prison. 

This was doubtless intended to prohibit the barbarities of quartering, hang- 
ing in chains, castration, etc. So long as the legislature does not provide 



B§ia-20 



PRELIMINARY PROVISIONS. 



6 



Const.. 

Art. l t 8ec 

1, par. 10. 
Oobl . B 

Const.. 
Art. l. see 
1. par. 11. 

Const.. 
Art. 1. pec 
1. par. 17. 



Const.. 
Art. l,sec 
8, par. 8. 

Cobl 



Cobb. S37. 



Cobb. 838. 



Cobb. 840. 



cruel and unusual punishments, such as disgraced the civilization of former 
Ages, and make one shudder with horror to read of them, as drawing, quarter- 
ing, burning, etc.. the Constitution does not put any limit upon legislative 
discretion: 47 Ga. 301. 

A sentence for five years cannot be deemed cruel and excessive, when the 
period might have been legally extended to ten years: 60 Ga. 284. Nor when 
costs are adjudged in addition to the maximum fine: 95 Ga. 478. 

Defendant may be afflicted with epilepsy, but there is no other place for him 
to receive punishment than the one prescribed in the sentence: 80 Ga. 452. 

§13. (5002.) Costs. No person snail be compelled to pay costs, 
except after conviction on final trial. 

§14. (5003.) Habeas corpus. The writ of habeas corpus shall not 
be suspended. 

§15. (5009.) Slavery. There shall be within the State of Georgia 
neither slavery nor involuntary servitude, save as a punishment for 
crime after legal conviction thereof. 

§16. (5020, 2675.) Conviction. No conviction shall work corrup- 
tion of blood, or forfeiture of estate. 

Forfeiture to the State for crime, is abolished, except so far as the 
lien which the State holds upon all the property of an offender for 
the costs of the prosecution against him. 

§17. (4661.) No benefit of clergy. No person convicted of a crime 
shall be allowed the benefit of clergy; and in all cases where the 
penalty of death is annexed to a crime, the convict shall suffer that 
punishment. 

§18. (4664.) Crimes fo be punished under coexisting laws. All crimes 
shall be prosecuted and punished under the law r s in force at the time 
of the commission thereof, notwithstanding the repeal of such laws 
before such trial takes place. 

History of this section : 12 Ga. 4. A change as to the mode of selecting 
jurors does not prevent the trial of an offense against the old law : 3 Ga. 53. 

Change in the mode of selecting jurors, applicable to offenses committed 
before its passage: 20 Ga. 742, 682. Section cited: 35 Ga. 225; 36/475. Penalty 
changed after commission of the crime and before the trial: 38 Ga. 585. Ap- 
plied to the liquor laws: 80 Ga. 714. 

§10. (4674.) No conviction for an assault or attempt when the crime is 

actually perpetrated. No person shall be convicted of an assault with 

intent to commit a crime, or of any other attempt to commit any 

offense, when it shall appear that the crime intended, or the offense 

attempted, was actually perpetrated by such person at the time of 

such assault, or in pursuance of such attempt. 

When the evidence showed the rape was committed, it was proper to refuse 
a charge that the jury might find him guilty of an assault with intent to 
rape: 73 Ga. 107; 62/558. When the offense charged is itself a crime, it does 
not come under this section : 63 Ga. 402. 

§20. Conviction mvxt precede punishment. The punishments pre- 
scribed by this Code can be inflicted only upon a legal conviction in 
a court having jurisdiction. 



PRELIMINARY PROVISIONS. 21-28 



§21. (20.) Sovereignty and 'jurisdiction. The sovereignty and juris- 
diction of this State extends to all places within the limits of her 
boundaries, except so far as .she has voluntarily ceded the same to 
the United States, or adjacent States, over particular Localities. 

§22. (21.) As to persons. The jurisdiction of this State and its 
laws extend to all persons while within its limits, whether afl citi- 
zens, denizens or temporary sojourners. 

§23. (85.) Counties divided bywater. Whenever a stream of water 
is the boundary of a county, the jurisdiction of the county shall 
extend to the centre of the main channel of such stream; and if an 
offense is committed on such stream, and the evidence on the trial 
does not definitely disclose in which county it was committed, the 
courts of either county may maintain jurisdiction for the trial and 
punishment of the offender. 

§24. (36.) Offenses committed on watercourses. Whenever an offense m 
is committed on the waters of any river which forms a boundary 
between this and any other State, the whole of which river belongs 
to Georgia, the county which is situate on the side of the river op- 
posite the point where the offense is committed, has jurisdiction of 
the same; and if the evidence on the trial does not definitely disclose 
on which side of the line, between two counties, at the place where 
it touches the river, the offense was committed, the courts of either 
county may maintain jurisdiction. 

§25. (37.) On boundary lines of the State. This State claims juris- 
diction of an offense committed on any of # her boundary lines with 
other States, for the county bordering on that part of the line where 
the offense was committed, and if doubtful as to which of two coun- 
ties (as set forth in the preceding section), for either county, and 
will proceed to arrest, indict, try, and execute, until such other State 
shall make a demand for the accused as a fugitive from justice, in 
which event, the progress of the case shall be suspended by order of 
the Governor until the question of jurisdiction is settled. 

§26. (4670.) Boundary line of two counties. When an offense shall Cobb ' s 40 - 
be committed on the boundary line of two counties, it shall be con- 
sidered and adjudged to have been committed in either county, and 
an indictment for such offense may be found and tried, and convic- 
tion thereon may be had, in either of said counties. 

§27. (4671.) Death from an act done in another county. When any Cobb - Si0 - 
mortal wound shall be given, or any poison shall be administered, 
or any other means shall be employed in one county, by which a 
human being shall be killed, who shall die thereof in another county, 
the indictment shall be found and the offender shall be tried in the 
county where the act was performed or done from which the death 
ensued. 

§28. (4672.) Or on soil ceded to United States. If such wound be Acts. isg&«, 
given or poison administered upon soil the jurisdiction over which 



§§29,80 PRELIMINARY PROVISIONS, 8 



has been ceded to the United States, within the geographical limits 
of this State, or within the territory of an adjoining State, and 
death shall ensue therefrom in any county in this State, the indict- 
ment shall be found and the cause tried in the county where the 
death occurs. 

The only case in which it is necessary to prove the place of the death in 
order to give jurisdiction: 34 Ga. 82. 



Const., 



§29, (4686, ol72.) In the county where the crime was committed. 
ActiisW] -^11 criminal cases shall be tried in the county where the crime was 
committed, except cases in the superior courts where the judge is 
satisfied that an impartial jury cannot be obtained in such county. 
When he becomes thus satisfied, he may change the venue for the 
trial. 

When the facts are not disputed, it is a question of law for the court, 
whether the venue be properly laid: 11 Ga. 253. 

The venue is a jurisdictional fact and is to be proved by the State as a part 
of the general case: 66 Ga. 754; 69/768; 82/206; 90/476; 92/48. If the evi- 
dence fails to show where the offense was committed, the verdict is illegal: 
48 Ga. 43; 68/827; 73/126; 82/205; 90/472; 65/330, 755. 

It must be established clearly and beyond all reasonable doubt: 48 Ga. 43; 
56/36 ; 57/367 ; 65/331, 754; 70/718; 90/472. The certainty may be attained by 
circumstantial as well as direct evidence: 62 Ga. 59; 11/615; 76/658; 85/220. 
Hearsay admissible to prove the location of a county line: 70 Ga. 718. If 
there is any evidence, however slight, to support the finding, it is ample, if 
there is none at all that the crime was committed elsewhere: 76 Ga. 658. 
Where one witness testified positively to it and another said he "reckoned" 
it was in another county, it was sufficiently proven : 80 Ga. 512. Conflicting 
evidence, but enough to support the finding: 62 Ga. 363. That defendant 
lived in the county, and within it admitted the forgery, and there being no 
evidence that he had ever been out of the county, was sufficient: 62 Ga. 299. 
Dying declarations and other evidence: 80 Ga. 272. 

Residence of defendant immaterial: 7 Ga. 15; 38/491. 

In simple larceny, thief may be tried in any county in which he may be 
found with the stolen goods : 14 Ga. 422. For receiving stolen goods, sufficient 
when it is shown that he received them in the county of the trial: 75 Ga. 253. 

In bastardy the jurisdiction is with the county to which the child is likely 
to become chargeable : 67 Ga. 187. 

In robbery the venue is the county in which the captors finally reduced the 
money to their exclusive possession : 90 Ga. 316. In murder the jurisdiction 
attaches where the mortal blow was given, and ordinarily, not necessary to 
show where deceased died: 34 Ga. 78. In assault to murder, where one who 
in South Carolina shoots at another who is in this State: 92 Ga. 41. For an 
attempt to commit a crime, by persuasions, bribes, etc., the venue is the 
county where the crime, if perpetrated, must have been committed: 26 Ga. 
494. 

The court may reopen the case to hear proof of the venue : 80 Ga. 468. 

Cobb, 888. g§Q < ( 4005 . ) Limitations of prosecutions. Indictments may be 
found and filed in the proper courts, as follows : 

1 . For murder, at any time after the death of the person killed. 



9 PRELIMINARY PROVISIONS. 



2. In all other cases where the punishment is death or perpetual 

imprisonment, within seven years next after the commission of the 

offense, and at no time thereafter. 

8. In all other felonies, within four years next after the commis- 
sion of the offense, and at no time thereafter. 

4. In all misdemeanors, within two years after the commission of 
the offense, and at no time thereafter. 

If the offender shall abscond from this State, or so conceal himself 
that he can not be arrested, such time during which he has been 
absent from the State, or concealed, shall not be computed or con- 
stitute any part of said several limitations. 

Nor shall any limitation run so long as the offender or offense is ' bb - 842 - 
unknown. 

If the indictment is found within the time limited, and for any in- 
formality shall be quashed or nol. prosed, a new indictment may be 
found and prosecuted within six months from the time the first is 
quashed or nol. pros' d. 

A presentment arrests the running of the statute : 22 Ga. 98. 

"Or offense " introduced by the codifiers and adopted by the convention: 
88 Ga. 552. 

If the offender escapes and conceals himself so that he cannot be arrested, 
the statute will be suspended during the time of the concealment : 68 Ga. 832. 

An exception relied on to prevent a bar, must be alleged and proven : 4 Ga. 
335; 54/55. 

Statute does not run, in bigamy, until the plural marriage becomes known : 
88 Ga t 552. 

On an indictment for murder the statute does not run, though there be a 
conviction for manslaughter: 1 Ga. 222. On indictment for manslaughter, it 
runs from the death and not from the date of the wound : 1 Ga. 222. 

The statute applies to the offense for which the defendant is indicted , and not 
to a minor offense included therein, of which he may be found guilty: 12 Ga. 
350; 75/474. 

Judgment arrested where, on the face of the indictment, the offense was 
barred, and none of the exceptions were alleged : 4 Ga. 335. 

Except where time enters into the nature of the offense, the offense may be 
charged to have been committed on any day previous to finding the bill, and 
may be proven at any time within the term of limitation : 13 Ga. 396 ; 11/54; 
18/736; 80/714. 



8§81-88 



FIRST DIVISION.— ARTICLES 1,2. 



10 



Definition of a crime. Infants, lunatics, idiots, and persons counseling them. 



FIRST DIVISION. 



Definition of a Crime. Persons Capable of Committing. 

Persons Punishable. 



ARTICLE 1. 



DEFINITION of a crime. 



Cobb, 7:9. §31. (4292.) Definition of crime or misdemeanor. A crime or mis- 
demeanor shall consist in a violation of a public law, in the com- 
mission of which there shall be a union or joint operation of act 
and intention, or criminal negligence. 

§32. (4293.) Intention, how manifested. Intention will be mani- 
fested by the circumstances connected with the perpetration of the 
offense, and the sound mind and discretion of the person accused. 

The term "criminal cases" has reference to such acts or omissions as are in 
violation of public laws and not local laws or police regulations of municipal- 
ities: 4Ga. 509. 

The legislature may do away with, or modify, the principle of the definition : 
75 Ga. 263. 

An insane person cannot, in a legal sense, have any intent: 38 Ga. 507. 

Every person is presumed to intend the natural and necessary consequences 
of his acts: 70 Ga. 736; 83/54; 29/608; 59/156. 

Intent to steal may be inferred from circumstances : 81 Ga. 736. 

Intent is only ascertained by acts and conduct, and the law presumes every 
act, which is in itself unlawful, was criminally intended, until the contrary 
appears: 68 Ga. 289. 

The question of intent is for the jury, and when they say it is criminal, and 
there is some evidence to support it, this court will not interfere : 68 Ga. 785. 

No intention here to violate law: 71 Ga. 598. 

To be too drunk to form the intention to kill, one must be too drunk to form 
the intention to shoot: 59 Ga. 154; 68/614. 

Intention abandoned: 82 Ga. 752. 



ARTICLE 2. 



INFANTS. LUNATICS, IDIOTS, AND PERSONS COUNSELING THEM. 

Cobb, 77S. |gg i (4294.) Persons mho are considered, of sound, mind. A person 
shall be considered of sound mind who is neither an idiot, a lunatic, 



11 FIRST DIVISION.— ARTICLE 2. g34 



infants, lunatics, Idiots, and persons counseling them. 



nor afflicted by insanity, or who has arrived al the age of fourteen 
years, or before that age if such person know the distinction between 

good and evil. 

The law presumes every person to be of Bound mind, and tin* burden is on 
the defendant to satisfy the jury, to a reasonable certainty, that he whs not of 
sound mind when the act was committed: 76 Ga. 453; 46/190, 280; 3/829. 

If a man has reason sufficient to distinguish between right and wrong, in 
relation to a particular act about to be committed, he is criminally respon- 
sible: 3 Ga. 310; 31/424; 45/58, 190, 280; 42/10; 58/296; 65/152. 

The insanity that excuses is such as dethrones reason and incapacitates an 
individual from distinguishing between right and wrong: 47 Ga. 553; 58/200. 

An exception is when, in consequence of some delusion, the w r ill is over- 
mastered and there is no criminal intent, provided the act is connected w r ith 
the delusion : 3 Ga. 310. 

It is not competent to prove that defendant is of weak mind, when it is 
admitted that he is neither idiot, lunatic, nor insane : 7 Ga. 3. 

If defendant deliberately slew deceased for adultery with his wife, that he 
labored under a delusion as to her character for virtue would not protect him : 
64 Ga. 454 ; 31/478. 

The court charged, that if upon the whole evidence in the case the jury 
entertained a reasonable doubt of the prisoner's sanity at the time of the com- 
mission of the alleged act, they were bound to acquit: 42 Ga. 10. 

The court declined to charge, that if the jury had a reasonable doubt as to 
the sanity of the prisoner, they should acquit; and did charge them, that if 
after a v careful survey of all the testimony they had a reasonable doubt of 
defendant's guilt, they should acquit: 45 Ga. 225; 76/453,463. No error in 
refusing to charge, that the prisoner's sanity must be shown to the exclusion 
of all reasonable doubt : 75 Ga. 615. 

The presumption of sanity should be rebutted by a preponderance of evi- 
dence of insanity, before the jury would be authorized to acquit on that 
ground : 56 Ga. 463 ; 75/615. 

That he was generally regarded as of unsound mind, was inadmissible: 
58 Ga. 296. Family and neighborhood reputation inadmissible to prove his 
mind injured by a hurt he received : 31 Ga. 424. Subsequent conversation 
with prisoner not admissible to prove insanity at the time of the homicide : 

31 Ga. 424. 

Experts should be asked their opinion on the facts of the case hypothetically 
stated : 31 Ga. 424. May not ask physician whether domestic troubles con- 
stituted sufficient cause to produce insanity : 56 Ga. 463. Non-experts may 
give their opinion as to sanity, if accompanied by the facts : 10 Ga. 513 ; 31/424 ; 
91/80; 86/70. 

State may prove express malice in rebuttal of the defense : 31 Ga. 424. 

A proper charge when defendant was between the ages of ten and four- 
teen years : 89 Ga. 188 ; 91/15 ; 93/200. A boy thirteen, possibly fourteen, con- 
victed of murder: 65 Ga. 152. One of fourteen, convicted of manslaughter: 

32 Ga. 496. 

Presumptively a boy under fourteen is physically incapable of committing 
rape, and the burden is on the State to prove his capacity : 93 Ga. 531. 

On the trial of a boy between ten and fourteen, for any offense, it is not 
error to give this section in charge: 93 Ga. 531. 

§34. (4295.) Infant under the age of ten years. Au infant under Cebb f f?s. 

the age of ten years, whose tender age renders it improbable that he 



g§35-S9 



FIRST DIVISION.— ARTICLES 3,4, 



12 



Married women acting under threats. Voluntary drunkenness. 



Cob'.'. 771'. 



Cobb. 779. 



Cobb. 779. 



should be impressed with a proper sense of moral obligation, or be 
3seseed of sufficient capacity deliberately to have committed the 
offense, shall not be considered or found guilty of any crime or mis- 
demeanor. 

If one receives stolen goods from an infant incapable of committing crime, 
he is guilty as a principal: 80 Ga. 127. 

§35. (4296.) Lunatics. A lunatic or person insane, without lucid 
intervals, shall not be found guilty of any crime or misdemeanor 
with which he may be charged: Provided, the act so charged as 
criminal was committed in the condition of such lunacy or insanity; 
but if a lunatic has lucid intervals of understanding, he shall answer 
for what he does in those intervals as if he had no deficiency. 

£-•)(). (4297.) Idiots. An idiot shall not be found guilty or pun- 
ish tni for any crime or misdemeanor with which he may be charged. 

§37. (4298.) Their counselors and instigators. Any person counsel- 
ing, advising or encouraging an infant under the age of ten years, 
a lunatic or an idiot, to commit an ofTense, shall be prosecuted for 
such offense, when committed, as principal; and if found guilty, 
shall suffer the same punishment as would have been inflicted on 
said infant, lunatic or idiot, if he had possessed discretion and been 
found guilty. 



Cobb. 779. 



ARTICLE 3. 

MARRIED WOMEN ACTING UNDER THREATS. 

§38. (4300.) Married women, if coerced, not punishable. A married 
woman, acting under the threats, command, or coercion of her hus- 
band, shall not be found guilty of any crime or misdemeanor not 
punishable by death or perpetual imprisonment; and, with this ex- 
ception, the husband shall be prosecuted as principal, and, if con- 
victed, shall receive the punishment which otherwise would have 
been inflicted on the wife, if she had been found guilty : Provided, it 
appears, from all the facts and circumstances of the case, that vio- 
lent threats, command, and coercion were used. 

It must appear that site was in fact coerced — that he used means calculated 
to overpower her will : 92Ga.49. 



ARTICLE 4. 



VOLUNTARY DRUNKENNESS. 

Cobb. 779. ggo^ (4301.) Voluntary drunkenness no excuse. Drunkenness shall 
not be an excuse for any crime or misdemeanor, unless such drunk- 



18 FIRST DIVISION.— ARTICLE 4. 1 80 

Voluntary drunkennegg. 

enness was occasioned by the fraud, artifice or conl rivance of another 
person, for the purpose of having a crime perpetrated; and then the 
person so causing said drunkenness, for such malignant purpose, 

shall be considered a principal, and suffer the same punishment as 
would have been inflicted on the person committing the offense, if he 
had been possessed of sound reason and discretion. 

Voluntary drunkenness, whatever its degree, is no excuse for crime : 17 Ga. 
146; 55/31; 83/45; 76/614. 

Presumption that a man intends the deed he does, and its natural and prox- 
imate consequences, is as applicable to a drunk man as to a sober man : 29 Ga. 
608; 59/156. 

If the mind, when unexcited by liquor, is capable of distinguishing between 
right and wrong, and he voluntarily deprives himself of reason, by intoxica- 
tion, lie is responsible: 31 Ga. 424. 

If the insanity produced by drunkenness be permanent, so as to destroy all 
knowledge of right and wrong, he is not responsible: 76 Ga. 453. If the habit 
of using intoxicating drinks or opiates has created a settled unsound condition, 
which leaves him without capacity to distinguish right and wrong as to the 
particular act, he is not responsible : 45 Ga. 225. 

If he was drunk and in consequence thereof killed his wife when he did not 
know her, or comprehend the nature of the act, he would be of sound mind 
within the meaning of the law : 76 Ga. 452. That he was drunk and killed 
another in a passion, would not reduce the crime to manslaughter: 83 Ga. 45. 

Inordinate thirst for liquor produced by the habit of drinking, is no excuse 
for consequences resulting from the indulgence : 31 Ga. 424. 

If persons give whisky to another in a social way and with no view or pur- 
pose to induce him to commit a crime, and while he is so drunk that he knows 
not what he does, procure him to vote illegally at a primary, he is responsible : 
91 Ga. 740. 

When competent to prove drunkenness, witness may give his opinion, stating 
the facts on which he bases it: 53 Ga. 365. Witness may state "from his 
appearance, he had been drinking" : 31 Ga. 466. 

If in the madness of drunken jealousy he took the life of his wife, even with 
the intent a drunken man may have, he is responsible: 53 Ga. 195. Mere 
drunkenness, whatever its degree, will not negative the intent formed by one 
sober enough to intend to shoot at another: 55 Ga. 31. To be too drunk 
to form the intent to kill, he must be too drunk to form the intent to 
shoot : A man who can voluntarily shoot is capable of acting from malice : 
59 Ga. 154. 

When drunkenness is set up, not as an excuse, but to show inability to do 
the act, it may be proven to throw light on other facts: 93 Ga. 1. 

Drunkenness may be considered, not to excuse, but to assist the jury in 
deciding whether the intention to kill preceded or followed the provocation : 
29 Ga. 594 ; 34/354. And on the question whether prisoner was excited by pas- 
sion or actuated by malice: 25 Ga. 527 ; 49/211. 

That drunkenness might be considered like any other fact to shed light on 
the transaction, was quite as favorable to the prisoner as the court could prop- 
erly charge : 68 Ga. 612. And so, also, as to the charge that it could be looked 
to to ascertain the condition of defendant's mind, and throw light on the ques- 
tion of malice: 49 Ga. 211. And even this has been questioned: 59 Ga. 154; 
68/697. 



§§40, U 



FIRST DIVISION.— ARTICLES 5, 6. 



14 



Misfortune or accident. Persons acting under fear 



ARTICLE 5. 

MISFORTUNE OR ACCIDENT. 

Cobb. "0. §40. (4802.) Misfortune or accident. A person shall not be found 
guilty of any crime or misdemeanor committed by misfortune or ac- 
cident, and where it satisfactorily appears there was no evil design, 
or Intention, or culpable neglect. 

Cited: 75 Ga. 265. 

If a man abandons an intent to do an unlawful act, and afterwards kills a 
man by accident, it is not murder, nor involuntary manslaughter in the com- 
mission of an unlawful act: 22 Ga. 479. But if the intent is not abandoned, it 
is murder: 19 Ga. 103. 

This does not apply to a want of intention to violate the law, but to cases 
where the crime was committed by misfortune or accident and without evil 
design or intention: 30 Ga. 385. 

If defendant handled his pistol in such a reckless manner as to make it dan- 
gerous to others, the court should decline to charge this section: 87 Ga. 527; 
95/470. 



ARTICLE 6. 



PERSONS ACTING UNDER FEAR. 



Oobb,778. §41. (430f8.) Acting under threats. A person committing a crime 
or misdemeanor under threats or menaces, which sufficiently show 
that his life or member was in danger, or that he had reasonable 
cause to believe, and did actually believe, that his life or member 
was in danger, shall not be found guilty; and such threats and men- 
aces being proved and established, the person compelling, by said 
threats and menaces, the commission of the offense, shall be consid- 
ered a principal, and suffer the same punishment as if he had perpe- 
trated the offense. 

A person cannot plead the authority or commands of a superior as a justifi- 
cation, unless the act be committed under coercion : 15 Ga. 346. 

Tf defendant burned the house by command of his superior officer in the 
usual course of prosecuting war, he should have been acquitted: 37 Ga. 195. 

A boy twelve years old, if coerced, could not be an accomplice: 72 Ga. 200. 

The danger must not be one of future violence, but of present and immedi- 
ate violence at the time of the commission of the act: 89 Ga. 528 ; 69/11. 

This measure of coercion is widely different from the duress mentioned in 
the Civil Code as applying to sales or other contracts: 78 Ga. 497. 

Accomplice not relieved unless the danger to life or member be present and 
immediate: 89 Ga. 528. 



15 SECOND DIVISION.— ARTICLE 1. |42 

Principals In first and second degree. 



SECOND DIVISION. 



Principals and Accessories in Crime. 



ARTICLE 1. 

PRINCIPALS IN FIRST AND SECOND DEGREE. 

§42. (4305.) Principals in first and second degree. A person may Cobb ' 781j 
be principal in an offense in two degrees. A principal in the first 
degree is the actor or absolute perpetrator of the crime. A princi- 
pal in the second degree is he who is present, aiding and abetting 
the act to be done; which presence need not always be an actual, 
immediate standing by, within sight or hearing of the act; but there 
may be also a constructive presence, as when one commits a robbery, 
or murder, or other crime, and another keeps watch or guard at some 
convenient distance. 

In misdemeanors all are principals : 91 Ga. 152 ; 95/327 : 84/25 ; 80/232 ; 54/55 ; 
73/426 ; 76/814. One in Tennessee employs another in Georgia, and both are 
guilty as principals : 93 Ga. 415. 

A principal perpetrates the crime or is present actively or constructively, 
aiding and abetting in the same : 15 Ga. 346. One present participating and 
attempting to strike is equally guilty with the one who strikes : 21 Ga. 221. If 
one is charged as principal and he was present aiding when the mortal blow 
was given, the variance is immaterial, as the stroke of one was in law the act 
of both : 28 Ga. 604 ; 88/350. One who makes and continues an attack to carry 
out a conspiracy to kill until another shoots, is a principal : 76 Ga. 731 ; 15/346 ; 
13/322. When two are charged with murder by shooting, conviction of one no 
obstacle to subsequent conviction of the other, though a single shot was fired : 
62 Ga. 59 ; 88/350. If principals sever, conviction of one no presumption against 
the other : 66 Ga. 310. 

One may be principal in the second degree, who is incapable of committing 
the offense in the first degree : 34 Ga. 235. Principal in second degree must 
aid and abet principal in first degree : 68 Ga. 289. 

It is sufficient to charge both with the offense, and that one perpetrated the 
crime and the other was present aiding and abetting : 60 Ga. 620 ; 88/350. When 
principals in the first and second degrees are punished alike, they may be in- 
dicted alike : 77 Ga. 764 ; and a principal in the second degree may be con- 
victed on an indictment charging him as principal in the first degree : 88 Ga. 349. 

Principal in second degree may be tried before principal in first degree : 
69 Ga. 12; 17/194; 28/217 ; and may be tried for murder after principal in first 
degree has been convicted of manslaughter : 28 Ga. 200. 



£§43-4o 



SECOND DIVISION.— ARTICLE 2. 



16 



Accessories. 



Cobb. 781. 



On the trial of a principal in the second degree, the guilt of the principal 
in the first degree must be shown : 64 Ga. 697. Record of conviction of prin- 
cipal in first degree is conclusive evidence of his conviction, and prima facie 
evidence of his guilt, and the onus is on defendant to show that the conviction 
was wrong: 66 Ga. 310; 7/3; 63/675. The truth may be shown by either party : 
54 Ga. 439. The original indictment in the same court is admissible: 7 Ga. 2. 
A conviction of principal in second degree should be set aside, where, on his 
trial, the record of the conviction of the principal in the first degree was 
introduced and that conviction was afterwards set aside : 54 Ga. 439. Acts and 
sayings of principal in first degree, admissible to show his guilt on trial of 
principal in second degree, when embraced in the confessions of the latter: 
60 Ga. 620. Confessions of principal in first degree, admissible to prove his 
guilt on the trial of the principal in second degree, but not to show the par- 
ticipation of the latter: 7 Ga. 3 ; 63/678. 

If principal in second degree in a case of homicide intended to participate 
in an assault and battery only, and had no felonious design, he is guilty of 
manslaughter only : 28 Ga. 200. 

If the acts alleged in the indictment made a principal, the w^ords "principal 
in the second degree" may be rejected as surplusage: 54 Ga. 57. One indicted 
as the absolute perpetrator cannot be convicted as principal in the second de- 
gree: 36 Ga. 222; 40/122; 88/350. One charged as principal cannot be con- 
victed as an accessory after the fact: 52 Ga. 287. Principal and accessory 
before the fact may be jointly indicted with proper averments against each : 
45 Ga. 57. Principals and accessories after the fact may be included in the 
general count : 10 Ga. 48. 

An accomplice jointly indicted with the principal may be a witness when he 
has been acquitted or w r here they are severally tried : 18 Ga. 704. 

§43. (4309.) Punishment of principal in the second degree. A prin- 
cipal in the second degree, except where it is otherwise provided, 
shall receive the same punishment that is provided for the princi- 
pal in the first degree. 



ARTICLE 2. 



ACCESSORIES. 



Cobb. 781. §44. (4306.) Accessory defined. An accessory is one who is not 
the chief actor in the offense, nor present at its performance, but 
is some way concerned therein, either before or after the act com- 
mitted. 

In misdemeanors all are principals : 91 Ga. 152 ; 84/25 ; 80/232 ; 88/457. 

Cobb, ret §45. (4307.) Accessory before the fact. An accessory before the 
fact is one who, being absent at the time of the crime committed, 
doth yet procure, counsel, or command another to commit a crime. 

None in manslaughter: 17 Ga. 202. 

Ordinary guilty of embezzlement, may be convicted as accessory before the 
fact : 76 Ga. 813. 

Voluntary confession of the principal, competent to show his guilt on the 
trial of the accessory: 46 Ga. 298. 



17 SrGOONI) DIVISION.— ARTICLE 2. 16-40 



Accessories. 



Plea of guilty of principal, before judgment entered, prima facie evidence of 
guilt on trial of accessory, and court could proceed with trial of accessory: 
76 (in. 808. Ree gestae of the larceny admissible: 43 Ga. 107. 

§40. (4309.) Pun 1*1 intent of an accessory before the fact. An acce«- 0obb * 78L 
sory before the fact, except vvhoro it is otherwise provided, shall 
receive the same punishment that is prescribed for the principal in 
the first degree. 

§47. (4308. )*' Accessory after the fact. An accessory after the fact CoW> » WL 
is a person who, after full knowledge that a crime lias beeD commit- 
ted, conceals it from the magistrate, and harbors, assists, or protects 
the person charged with or convicted of the crime. 

Name of the principal, if known, must be alleged and proved ; if unknown, 
it must be so alleged, and proof of the crime by anyone will suffice: 4 Ga. 465. 

The guilt of the principal must be shown : 4 Ga. 465. 

Record of conviction of principal on a plea of guilty, conclusive evidence of 
the conviction, and prima facie evidence of principal's guilt: 63 Ga. 675. 

§48. (4310.) Accessories after the fact, punishment. Accessories Cobb,78i. 
after the fact, except where it is otherwise provided in this Code, pp. 54, 55. 
shall be punished as for a misdemeanor. 

§49. (4311.) When accessory may be tried. An accessory before orActeiars, 
after the fact may be indicted, tried, convicted and punished, not- 
withstanding the principal offender may have been pardoned or 
otherwise discharged after his conviction, or cannot be taken so as 
to be prosecuted and punished. 

In arson accessory could not be tried before conviction, without some special 
reason showing why the principal had not been tried : 46 Ga. 298. 



|§50-54 



THIRD DIVISION.— ARTICLES 1,2. 



18 



Crimes against the State. Treason. 



THIRD DIVISION. 



Crimes Against the State and People, 



ARTICLE 1 



CRIMES AGAINST THE STATE. 



§50. (4312.) Crimes against the State. Crimes against the State 
and people shall consist in treason in the first degree and second 
degree, inciting, or attempting to incite, an insurrection. 



ARTICLE 2. 



Const.. 
Art. I, sec 
'2, par. 2. 

Cobb, 782. 

Acts 1866. 
p. 150. 



Const., 
Art. l. Bee 
2, par. 2. 

Cobb, 782. 



Cobb, 782. 



Cob • 



TREASON. 

§51. (5019, 4313.) Treason, punishment. Treason against the 
State of Georgia shall consist in levying war against her, adhering 
to her enemies, giving them aid and comfort, and shall be punished 
with death, but the punishment may be commuted in conformity 
with the provisions of section 63 of this Code. 

§o2. (5019.) How proved. No person shall be convicted of treason 
except on the testimony of two witnesses to the same overt act, or 
confession in open court. 

A re-enactment of the British statute of Edward III., and founded upon the 
policy of protecting men from unguarded confessions to their utter ruin : 
30 Ga. 19. 

§53. (4313.) Jurisdiction of ads done without the State. When the 
overt act of treason shall be committed without the limits of this 
State, the person charged therewith maybe arrested and tried in any 
county in this State, within the limits of which he may be found, 
and shall be punished in like manner as if the treason had been 
committed and done within the limits of said county. 

§54. (4314.) Treason in second degree. Treason in the second 
degree shall consist in the knowledge and concealment of treason, 
without otherwise assenting to or participating in the same, and 
shall be punished by confinement and labor in the penitentiary for 
four years. 



19 'TIIIIiD DIVISION.— ARTICLE 8. 55-68 



Insurrection aiul attempt to Incite Insurrection. 



ARTICLE 8. 

INSURRECTION AND ATTEMPT TO [NCITE INSURRECTION. 

§55. (4815.) Insurrection, [nsurrection shall consisl in any com- 
bined resistance to the lawful authority of the State, with intent to : 
the denial thereof, when the same is manifested, or intended to I 
manifested, by acts of violenc 

§56. (4316.) Attempt to inciU insurrection. Any attempt, by per- " - 

suasion or otherwise, to induce others to join in any combined resist- 
ance to the lawful authority of the State, shall constitute an attempt 
to incite insurrection. 

§57.. (4317.) Punishment of insurrection. Any person convicted of ^J 8 ^ 8 * 
the offense of insurrection, or an attempt to incite insurrection. i: ^- 
shall be punished with death; or, if the jury recommend to mercy, 
confinement in the penitentiary for not less than five nor mor^ than 
twenty years. 

Prior to the amendment there was no penalty for an attempt to incite insur- 
rection: 38 Ga. 571. 

§5S. (431S. ) Circulating insurrectionary papers. If any person shall 2J] 
bring, introduce, print, or circulate, or cause to be introduced, cir- j^" 152- 
dilated, or printed, or aid or assist, or be in any manner instrumen- 
tal in bringing, introducing, circulating, or printing within this 
State any paper, pamphlet, circular, or any writing, for the purpose 
of inciting insurrection, riot, conspiracy, or resistance against the 
lawful authority of the State, or against the lives of the inhabitants 
thereof, or any part of them, he shall be punished by confinement 
in the penitentiary for not less than rive nor longer than twenty 
vears. 



§59 FOURTH DIVISION.— ARTICLE !. 20 

Homicide. 

FOURTH DIVISION. 



Crime? Against the Person. 



ARTICLE 1 



HOMICIDE. 



Cobb,m £ 59 (4319.) Homicide. Homicide is the killing of a human be- 
ing, and is of three kinds — murder, manslaughter, and justifiable 
homicide. 

The court should give to the jury the definition of each grade of homicide, 
and also of justifiable homicide, provided the testimony will authorize it. The 
charge should apply to the case made by the pleadings and proof: 22 Ga. 75; 
18/229 ; 35/242 ; 36/222 ; 41/485 ; 17/194 ; 70/736 ; 72/441 ; 73/31 ; 79/514 ; 92/465 ; 
87/525. Omission to charge upon a grade not authorized by the pleadings and 
proof, not error: 31 Ga. 424; 65/147; 87/174; 92/54; 93/123, 179,208; 90/311. 
472: 88/784; 94/76. 

If there is any doubt as to the grade of homicide of which defendant is guilty, 
the court should define the several grades, and leave it to the jury to find the 
one of which he is guilty : 12 Ga. 142. "When the defense turns upon the grad- 
ing of the homicide, all the grades put in issue by the argument or requested 
charge, should be given : 29 Ga. 594. "Where the defense is justifiable homicide,, 
or where the defense insists upon a lower grade than murder, each grade should 
be given: 10 Ga. 102; 22/83; 25/699. 

If there be sufficient evidence to create a doubt, however slight, whether the 
offense be murder or voluntary manslaughter, and that defense is made, vol- 
untary manslaughter should be given in charge: 56 Ga. 113; 76/478; 90/118. 
If the defense is justifiable homicide, and neither the evidence, nor statement, 
warrant a verdict for manslaughter, that law should not be given : 90 Ga. 472. 
If defendant's counsel takes the position, and the evidence warrants it, that 
manslaughter is not involved, court need not charge on the subject: 90 Ga. 
140. The charge should allow the jury to give due weight to any material cir- 
cumstance, which might have the effect to reduce the crime to voluntary man- 
slaughter: 17 Ga. 498. Whether voluntary or involuntary, should have been 
submitted here: 89 Ga. 337; but not here: 92 Ga. 16. 

Where there is nothing in the evidence to indicate that the killing was in- 
voluntary and no charge is requested on that subject, the judge should not 
charge upon it although the prisoner's statement by indirection suggests such 
a theory : 91 Ga'. 272. A charge on involuntary manslaughter should have been 
given here : 02 Ga. 449. If the facts in any view that can be taken do not make 
a case of involuntary manslaughter, that grade should not be given in charge: 
28 Ga. 200; 55/697. When, in charging upon it, the court need do no more 
than read the section hearing upon it: 64 Ga. 318. If it be apparent that de- 
fendant i- guilty of murder or of voluntary manslaughter, or is not guilty, the 



21 FOURTH DIVISION.— ARTICLE I. 

Homicide 



court may so charge: 22 Ga. 75. The court may say to the jury that tin- Ca§€ 
rests upon the law of murder, voluntary manslaughter, or justifiable homicide, 
if there is no evidence from which it could be inferred that the killing was in- 
voluntary : 52 Ga. 607. 

If evidence does not warrant a charge as to reasonable fours, it should be 
omitted: 47 Ga. 230. When justifiable homicide in self-defense is set up, it is 
not error to charge the section upon the subject of urgent danger: 89 Ga. 718. 

If the evidence warrants it, specific instructions as to a particular point 
should be given on request : 17 Ga. 204. 

The actual grade of a homicide is to be ascertained by the jury on all 
the facts in evidence and with the aid of a proper charge from the court: 
92 Ga. 72. 

§60. (4320.) Murder. Murder is the unlawful killing of a human Cobb < 788 - 
being, in the peace of the State, by a person of sound memory and 
discretion, with malice aforethought, either express or implied. 

There is no difference between express and implied malice, except in the 
mode of arriving at the fact: 29 Ga. 607. 

The legal sense of the term "malice" is not confined to particular animosity 
to the deceased, but extends to an evil design in general: 3 Ga. 325; 26/276. 
The popular idea of malice in its sense of revenge, hatred, ill will, has noth- 
ing to do with the subject. It is an intent to kill a human being, in a case 
where the law would neither justify nor in any degree excuse the intention, if 
the killing should take place as intended: 29 Ga. 607. Legal malice is not ill 
will or hatred. It is an unlawful" intention to kill, without justification or 
mitigation : 70 Ga. 617. It is the deliberate intent unlawfully to take human 
life, whether it springs from hatred, ill will or revenge, ambition or avarice, 
or a frenzy of drunkenness : 76 Ga. 453. 

A man may form the intent to kill, do the killing instantly, and regret the 
deed as soon as done : 79 Ga. 37. 

Malice must exist at the time of the killing. It need not have existed any 
length of time previously : 3 Ga. 326 ; 35/54 ; 70/617 ; 77/96. 

If in a rencontre, defendant drew a deadly weapon and killed deceased with 
malice aforethought, it would be murder: 70 Ga. 135. So also, if there be a 
mutual intention and agreement to fight and one kills the other with malice : 
70 Ga. 736. 

When a homicide is proved, the law presumes malice, and unless the evi- 
dence should relieve the slayer, he should be found guilty of murder: 20 Ga. 
752; 26/157: 31/424; 41/484; 35/80; 50/556; 70/336; 74/26; 93/169. 

The presumption of innocence is removed by proof of the killing : 69 Ga. 752. 

When the killing is shown, it is on the prisoner to justify or mitigate the 
homicide. The proof to do that, may come from either side : 2 Ga. 188 ; 3/325 ; 
20/752; 35/80; 26/157; 12/142; 50/556; 52/609; 69/226, 14. 

That which is justifiable on the part of deceased, cannot be any legal provo- 
cation to the slayer : 29 Ga. 470. 

After an injury has been consummated, there is no principle of law which 
justifies an act of individual satisfaction or vengeance: 66 Ga. 313. 

Death ensuing from a willful omission of duty is murder ; if in consequence 
of the negligent omission of a duty, it is manslaughter; applied to cruel treat- 
ment of a child : 72 Ga. 164. 

Intentionally killing a mere trespasser upon property with a deadly weapon 
is generally murder and not manslaughter: 58 Ga. 35 ; 72/442 ; 90/707. To fire 
upon a fleeing adversary and kill a third person is murder: 70 Ga. 265. If. in 
an attack upon the person or premises of another with intent to kill, the gun 



$61 FOURTH DIVISION.— ARTICLE 1. 22 

Homicide. 

of the assailant is accidentally discharged in the struggle, and the other is 
killed, it is murder: 19 On. 103. If. provoked by the words of his wife, he 
killed her, though in a sudden heat of passion, it was murder: 81 Ga. 646. 

To kill an officer, who has execution of process, in doing his duty, is murder, 
although there was not any former malice between them: 17 Ga. 194. To slay 
an officer to avoid arrest for felony, is murder: but done suddenly, without 
knowledge of the officer's purpose or official character, and without malice, is 
manslaughter. Belief, or reasonable grounds of belief, would be equivalent to 
knowledge: B5 Ga. 718. A member of a posse entitled to the same protection 
as the sheriff himself. The duty of such person in making the arrest, and the 
rights of the person sought to be arrested: 93 Ga. 77. Generally the killing 
of an officer or other person to prevent an illegal arrest is not murder but 
manslaughter: 91 Ga. 204. Conviction for killing one who was in fact an 
officer, but who did not disclose his character or the warrant : 87 Ga. 50. 

A guard kills a penitentiary convict. Duties and liabilities of the guard 
>tated: 76 Ga. 473. 

The character of the wound being important, a photograph thereof was 
admissible: 69 Ga. 36. A diagram of the scene of crime was admissible: 
68 Ga. 688 

Threats made by a third party against one of those killed, about two weeks 
before the killing and unconnected with any circumstance of the killing, not 
admissible: 81 Ga. 553. 

Remark of a stranger admitted to throw light on what deceased said: 
87 Ga. 262. 

Statements concocted as parts of a scheme of crime are inadmissible as 
self-serving, but may be proved by the opposite party to show premeditation : 
71 Ga. 128/ 

Declaration of defendant four years before that he had beaten his wife, 
admitted to show probability of the truth of the charge: 60 Ga. 246. 

Defendant's sayings as to all matters material to the issue are admissible: 
55 Ga. 326. If he admits the killing coupled with an explanation which might 
negative malice, no presumption of murder would arise : 90 Ga. 473. 

Every fact or circumstance shedding light upon the transaction is admis- 
sible: 43 Ga. 484; 51/303: 72/441. 

Proof of circumstances to show the killing and the perpetrator: 11 Ga. 615 ; 
12/142: 33/269; 43/484; 76/498; 92/14; 66/508; 67/460; 65/36. 756; 69/36. 

Injudicious treatment of wound, not relieve, unless it be clearly shown the 
wound was not necessarily mortal: 19 Ga. 195. 

Identity of the person killed: 11 Ga. 615; 48/66: 63/456; 65/147: 71/280; 
90/95. 

Where two are indicted, and the one shot that was fired was the act of both. 
the conviction of one is not a bar as to the other: 62 Ga. 59. 

Finding guilty of manslaughter on indictment for murder, is an acquittal of 
murder: 22 Ga. 546. 

Cobb.-- §61. (4221.) Express malice. Express malice is that deliberate 

intention unlawfully to take away the life of a fellow-creature, which 
i- manifested by external circumstances capable of proof. 

To dfd iterate is to reflect with a view to make a choice, and a reflection but 
for a minute i- a sufficient deliberation : 3 Ga. 326. If the deliberate intention 
entered the mind of the slayer a moment before he fired the shot, it is suffi- 
cient : 70 Ga. 617. 



23 FOURTH DIVISION.— ARTICLE I. 

Homicide. 

An illustration of express malice is where a deliberate intention to kill ■ 
particular individual is evidenced by former animosities, concerted plots, 
threats, or by the nature of the act itself: 3 Ga. 324; 11/628: 83/217. 

It is evidence of express malice, if i here was do assault upon t he person kill- 
ing or attempt to do him violent personal injury by deceased : LI Ga. 615. 

Repeated quarrels may be shown between the parties, to establish the malo 
animo, but not admissible to prove a particular quarrel or cause of grudge, 
unless it be followed up with proof of a continued difference Blowing from that 
source: 5 Ga. 86. To render proof of previous quarrels or particular acts ad- 
missible, they must be connected with the final act and shed Light upon mo- 
tive: 43 Ga. 89. Altercation the day previous, and state of feelings, admissible r 
17 Ga. 484; 31/261 ; 43/89; 51/502. Evidence of a difficulty three weeks before : 
51 Ga. 502. State of feelings : 55 Ga. 326, 49 ; 60/246. Admissible to show pre- 
vious difficulty, although the parties became friendly afterwards: 81 Ga. 593. 

The effect of a threat as evidence is to be determined by the jury. It is to 
be weighed with the other facts in the case in the light of all the circumstance- : 
58 Ga. 224. If it be susceptible of two constructions, the one in favor of inno- 
cence ought to be adopted : 22 Ga. 479. Evidence of a communicated hostile 
message purporting to be from accused, not admitted without proof that he 
sent it: 71 Ga. 128. Evidence of threats, to show malice: 29 Ga. 484; 57/183; 
49/12 ; 51/502. Threats of jealousy, made years before : 62 Ga. 65. Where each 
bore malice against the other, the fighting was upon deliberation, and there 
were mutual threats to kill, the killing by either would be murder : 79 Ga. 806. 

Malice is the motive that is present at the time of the killing, and no other 
motive need be shown : 80 Ga. 170; 77/767. All testimony going to show mo- 
tive is material. There is no murder without malice, and no malice without 
motive: 55 Ga. 325, 591. That deceased had indicted defendant, admitted to 
show motive and explain threats : 49 Ga. 12 ; 91/161 ; 70/766 ; 73/620. Deceased 
claimed to know facts connecting defendant with a larceny: 69 Ga. 13. Ani- 
mosity toward stepmother who was killed at the same time, shown on trial 
for killing his father: 85 Ga. 73. That deceased had money on his person and 
the probable motive was robbery: 89 Ga. 425. Rumors of approaching mar- 
riage brought home to defendant, a rejected suitor : 43 Ga. 484. Evidence may 
establish guilt without disclosing any motive : 74 Ga. 870. 

Providing the weapon beforehand for the purpose of killing deceased, is 
evidence of malice : 58 Ga. 35 ; 93/304. 

Presumption of an intention to kill arises from the use of a deadly weapon 
in the usual and natural manner in which such weapon would kill : 68 Ga. 613 ; 
83/45. Killing with an instrument likely to produce death, is a stupendous 
fact as a guide to intention : 79 Ga. 37. The bullets taken from the body of 
deceased were evidences of the intent that prompted the slayer when he fired 
the shot: 68 Ga. 688. Whether the killing was done with or without malice 
depends much upon the weapon used: 73 Ga. 31. A trespasser going armed 
with a loaded pistol ready to meet any emergency, is evidence of malice: 
22 Ga. 400. An axe was used here : 46 Ga. 148 ; 34/354. 

The law does not necessarily and always attach malice to the secretly carry- 
ing deadly weapons: 33 Ga. 303. Slayer may prove he came by the weapon 
accidentally or for an innocent purpose: 31 Ga. 167. A board was accidentally 
and hastily taken up : 15 Ga. 223. An axe-helve was used, and it was not shown 
to be a weapon likely to produce death : 33 Ga. 441. A hoe used here, and no 
proof of malice : 85 Ga. 285. 

State proved the killing and closed ; defendant proved facts to rebut pre- 
sumption of malice; the State could then prove express malice: 14 Ga. 43. 



£§62, 68 FOURTH DIVISION.— ARTICLE 1. 24 



Homicide. 



State may offer proof of express malice in reply to plea and proof of insanity 
3] Ga, 424. 



Oobb, re 



§62. (48:?:?.) Implied malice. Malice shall be implied where no 
considerable provocation appears, and where all the circumstances 
i^ the killing show an abandoned and malignant heart. 

Malice is implied from any deliberate act, however sudden : 3 Ga. 326 ; 42/613. 

It is implied from the recklessness of the act when one shoots at another in 
sport : 39 Ga. 31. And when one shoots into a crowd, not intending to kill any 
particular person, but recklessly of human life: 93 Ga. 201; 26/276; 31/263. 
And when one shoots at and kills deceased, and no motive of anger or provo- 
cation is proven : 41 Ga. 485. When their treatment ( of slave ) was likely to 
produce death: 25 Ga. 511. Where they were strangers to each other, and 
one killed the other without any considerable provocation : 49 Ga. 211. 

An abandoned and malignant heart, in the sense of the law, is commonly 
held to be evinced by a weapon, or other appliance likely to produce death, 
and by brutal and bloodthirsty use of such instrumentality : 15 Ga. 223 ; 25/211. 
The circumstances here showed an abandoned and malignant heart: 2 Ga. 189 ; 
3/325; 22/546; 25/702; 28/218; 35/81, 158. 

Act?is78-ii. §63- (4323.) Murder, punishment. The punishment for persons 
convicted of murder shall be death, but may be confinement in the 
penitentiary for life in the following cases : If the jury trying the 
ease shall so recommend, or if the conviction is founded solely on cir- 
cumstantial testimony, the presiding judge may sentence to confine- 
ment in the penitentiary for life. In the former case it is not dis- 
cretionary with the judge; in the latter it is. 

^loe 8 ' 0- Whenever a jury, in a capital case of homicide, shall find a verdict 
of guilty, with a recommendation of mercy, instead of a recommen- 
dation of imprisonment for life, in cases where, by law, the jury 
may make such recommendation, such verdict shall be held to mean 
imprisonment for life. If, in any capital case of homicide, the jury 
shall make any recommendation, where not authorized by law to 
make a recommendation of imprisonment for life, the verdict shall 
be construed as if made without any recommendation. 

It is in the discretion of the jury whether they will recommend the impris- 
onment. They are not limited or circumscribed in any respect, and the law 
prescribes no rule for the exercise of their discretion : 72 Ga. 131 ; 74/32 ; 
81/646; 83/46; 89/480. 

The judge should not charge them that they should not be governed by 
their sympathies, but by their judgment: 72 Ga. 131. It was not error to 
charge them that they could make the recommendation if the case was one in 
which they thought they were justified in doing so: 72 Ga. 269. Nor, that it 
was for them to say whether the facts, all the circumstances, warranted them 
in making it: 77 Ga. 471. 

A recommendation to mercy is equivalent to a recommendation to impris- 
onment for life, and is a legal verdict: 79 Ga. 774; 93/203. 

Where the jury inquired whether they could recommend to mercy and the 
judge read them this section, it was sufficient: 80 Ga. 451. 



25 FOURTH DIVISION.— ARTICLE I. (64,66 

Homicide. 



Counsel for the State may comment before the jury upon the propriety Of 
impropriety of their recommending imprisonment: 87 Ga. 174. 

If not founded solely on circumstantial evidence, the court has no discre- 
tion: 24 Ga. 315; 31/263. 

The circumstantial evidence contemplated is that defined in this Code: 
52 Ga. 82. When there is direct evidence of the homicide by shooting and 
prisoner admitted the shooting, the case is not founded solely on circumstan- 
tial evidence: 57 Ga. 329. 

The jury should not be charged as to the discretionary power of the court : 
80 Ga. 786. The practice is a bad one : 78 Ga. 592. 

This court will rarely interfere with the exercise of the judge's discretion : 
74 Ga. 33. 

§64. (4324.) Manslaughter. Manslaughter is the unlawful killing Cobb ' 783 - 
of a human creature, without malice, either express or implied, and 
without any mixture of deliberation whatever, which may be volun- 
tary, upon a sudden heat of passion, or involuntary, in the commis- 
sion of an unlawful act, or a lawful act without due caution and 
circumspection. 

§65. (4325.) Voluntary manslaughter. In all cases of voluntary G lg bb ' 783 ' 
manslaughter, there must be some actual assault upon the person 
killing, or an attempt by the person killed to commit a serious per- 
sonal injury on the person killing, or other equivalent circumstances 
to justify the excitement of passion, and to exclude all idea of de- 
liberation or malice, either express or implied. Provocation by 
words, threats, menaces or contemptuous gestures, shall in no case 
be sufficient to free the person killing from the guilt and crime of 
murder. The killing must be the result of that sudden, violent im- 
pulse of passion supposed to be irresistible; for if there should have 
been an interval between the assault or provocation given and the 
homicide, sufficient for the voice of reason and humanity to be heard, Ux * Mm "» 
the killing shall be attributed to deliberate revenge, and be punished 
as murder. 

There should be some assault, but evidence of such assault may be found in 
a mutual intention to fight, and an approach by deceased in furtherance of the 
design : 15 Ga. 223. Although an assault may, under circumstances, rebut the 
presumption of malice, it is not every assault, or even a blow, that will, as a 
matter of course, reduce the crime : 35 Ga. 59. 

There may be cases of voluntary manslaughter in which there is no assault 
upon the person killing by the person killed : 18 Ga. 17 ; 25/532. 

Serious personal injury means an injury greater than a provocation by mere 
words, and less than a felony: 24 Ga. 282. A bodily injury, and not a per- 
sonal affront, or personal wrong; an injury that may deprive of life, and 
which must be prevented by a resistance of the like sort : 24 Ga. 297 ; 42/614. 
It was manslaughter to kill after an assault endangering life or limb, and the 
danger had ended and the assailant was retreating ; 33 Ga. 4. 

"Equivalent circumstances" does not include words, threats, menaces, or 
contemptuous gestures: 53 Ga. 428. What circumstances will present the 
equivalence of "other equivalent circumstances" the law does not say : it fur- 
nishes the standard and leaves the jury to make the comparison: 63 Ga. 896. 



$65 FOURTH DIVISION.— ARTICLE !. 26- 

Homicide. 

The other circumstances must be such as would produce the same state of 
mind on the part of defendant as would an assault or an attempt to commit 
a serious personal injury on him : 85 Ga. 378. Words, threats, menaces or con- 
temptuous gestures, are no considerable provocation in the eye of the law. and 
therefore malice shall be implied: 49 Ga. 211; 42/613; 25/207. They will not 
reduce a homicide to manslaughter : 59 Ga. 249 : 55/317 ; 68/613 : 70/336. Prov- 
ocation by threats will in no case be sufficient to free the person killing 
from manslaughter, if the circumstances reduce the crime from murder to 
that grade: 45 Ga. 198. 

Presentation of a weapon without a manifest intention to use it presently, 
will not justify a killing: 65 Ga. 431. That deceased pulled out his knife but 
made no effort to use it. and did not even open it. can in no sense be more 
than a menace, if it was that: 53 Ga. 428. If the battery by deceased was not 
disproportioned to the insult offered by words, it could not be such consider- 
able provocation as would rebut the presumption of malice: 55 Ga. 48. 

Whenever the homicide is the result of that sudden and violent impulse of 
passion which is supposed to be irresistible, and without any malice or delib- 
eration, it is voluntary manslaughter: 30 Ga. 67. That a man was drunk and 
killed another in a passion, would not reduce the crime to manslaughter: 
83 Ga. 45. 

Killing in the heat of passion is murder, if there be no just cause for the anger, 
or. if after the provocation, and before the killing, there be sufficient time for- 
passion to cool and reason-to resume her sway : 49 Ga. 482 : 25/207 ; 42/613. 

Cooling time is a question for the jury. The law fixes no certain timer 
59 Ga. 248. As a matter of law, three days is sufficient cooling time. If the 
interval is short, and it is doubtful whether there has been sufficient time 
for the voice of reason and humanity to be heard, it should be referred to 
the jury: 91 Ga. 97; 93/123. 

To reduce the crime to manslaughter the slayer is not obliged to retreat 
from his domicile or family before the mortal wound is given : 17 Ga. 465. 

If accused shot at his assailant in consequence of an unprovoked assault,, 
and killed another person, it would be manslaughter; if the assault were not- 
such as to have justified him in killing his assailant : if it were such, it would 
be homicide by misadventure : 92 Ga. 602. 

An assault with a deadly weapon in a manner likely to produce death, made 
in consequence of words, may be rightfully resisted so far as seemingly neces- 
sary to self-defense : 92 Ga. 602. Where deceased resumed the quarrel and 
assaulted accused, it was manslaughter : 88 Ga. 297. Deceased was the aggres- 
sor, and under circumstances here shown, if accused stabbed intentionally, it 
would be manslaughter and not murder: 82 Ga. 449. A.andB. were brothers. 
Accused, on being assaulted by A., retired, armed himself, and, before cooling 
time, returned, and a combat ensued with B., who produced the first actual 
contact. Accused, without deliberation, and under sudden impulse of passion,, 
killed him. It was manslaughter: 90 Ga. 787. 

Where there was considerable provocation, great heat of blood and mutual 
intention to fight, it may be reduced to manslaughter: 15 Ga. 223; 13/328; 
14/361. If the killing was upon a sudden affray, in the heat of passion, in con- 
- quence of a sudden violent attack, it would be manslaughter, unless made 
necessary to save himself from death, or some great bodily harm : 17 Ga. 465. 
If. upon a sudden quarrel, the parties fight upon the spot, or presently agree 
and fetch their weapons and fight, the killing is manslaughter: 30 Ga. 67; 
95/343. 784. To constitute mutual combat there must be a mutual intention 
to fight, though there may be but one blow: 46 Ga. 148. 



27 FOURTH DIVISION.— ARTICLE I. 67 

Bomldde. 



There was here a deliberate intention to fight deceased on account of a pre- 
vious threat, and a verdict for manslaughter was fullj justified: 15 Ga. 200. 

If done wit lion t legal provocation, upon a sudden falling oat, with an instru- 
ment not likely to produce death, the jury mighl infer want of malice ; bul if 

done upon a sudden heat of passion, provoked by words and abusive language 
used by deceased, with a deadly weapon, it would be murder, the weapon used 
showing the intent to take life: 73 Ga. 32. The prisoner had cause of anger, 
and the circumstances excuse him from the guilt of murder, but at the time 

he inflicted the fatal blow, he had no reason to fear harm to himself: 18 ( 
A son. fourteen years old, without apparent necessity shoots one engaged with 
his father in a fist fight, guilty of manslaughter: 32 Ga. 196. If defendant 
came upon deceased suddenly and without premeditation, and his passions 

were aroused thereby, and in his belief deceased had a pistol, and enraged on 

seeing the adulterer for the first time after his knowledge of his guilt, he kill' 
him. it would be manslaughter: 64 Ga. 454. 

Acts of preparation to meet and resist an aggressor, cannot be urged by him 
as a provocation: 55 Ga. 317. 

When prisoner in his statement recited words of deceased as an excuse for 
killing, this section was properly charged: 81 Ga. 645. 

Verdicts supported by the evidence: 70 Ga. 597 : 73/79 : 75/181: 79/87; 80/191. 

On an indictment for murder there may be a verdict for manslaughter : 1 Ga. 

222. And the legal effect is the highest grade : 50 Ga. 128; 51/144; 83/378. 

§66. (4826.) Punishment. Voluntary manslaughter shall be pun- Cobb.784. 
ished by confinement and labor in the penitentiary for not less than p-»- 
one nor longer than twenty years. 

§67. (4327.) Involuntary manslaughter. Involuntary manslaughter °° b1 "-■ 
shall consist in the killing of a human being without any intention 
to do so, but in the commission of an unlawful act, or a lawful act. 
which probably might produce such a consequence, in an unlawful 
manner : Provided, that where such involuntary killing shall happen 
in the commission of an unlawful act which, in its consequences, 
naturally tends to destroy the life of a human being, or is committed 
in the prosecution of a riotous intent, or of a crime punishable by 
death or confinement in the penitentiary, the offense shall be deemed 
and adjudged to be murder. 

There can be no involuntary manslaughter when the intention is to kill : 
76 Ga. 474; 73/79. 

It is enough if the act was unlawful and the killing was the possible con- 
sequence of the act : 7 Ga. 13. 

If a bludgeon which would likely produce death, be used without an inten- 
tion to kill, but death does ensue, it would be murder : 28 Ga. 216: 57/479: 
79/68. If, in an attack upon another with an intent to kill, the gun is accident- 
ally discharged and kills, it is murder: 19 Ga. 103. 

An offense declared to be murder under this section, can not be excused or 
mitigated by proof that the accused had no ill will or actual malice toward the 
deceased: 31 Ga. 236. A policeman, who. without a warrant, arrests an inno- 
cent man, and in preventing an escape kills him. is guilty, at least, of involun- 
tary manslaughter in the commission of an unlawful act: 64 Ga. 125. 

A conviction on circumstantial evidence: 63 Ga. 740. 



:: S-7 I 



F«U'RTH DIVISION —ARTICLE 1. 



28 



Homicide. 



If one abandons his intent to do an unlawful act and afterwards accidentally 
kills, it is not murder, nor is it involuntary manslaughter in the commission of 
an unlawful act : 29 Ga, 479. 

T<» have a pi>tt»l illegally at church and handle it negligently and discharge 
it intentionally. thereby committingaccidentally a homicide, is not necessarily 
murder. It may be involuntary manslaughter in the commission of an unlaw- 
ful act. which would depend upon whether it was a reckless or only a negligent 
ting: 87 527; kJ/449. 

A - involuntary manslaughter in the commission of a lawful act where 
the- - not observed necessary discretion and caution: 31 Ga. L8I 

If there is any evidence to raise a doubt as to the intention to kill, this law 
s»hould be given in charge : 76 Ga. 474. When there is no evidence to authorize 
it. it should given: 58 212; 73/79: 75/181. 

an indictment with one count, for murder, a verdict for "involuntary 
manslai _ - ad: 38 Ga. 117; 58/547; 83/380. Such a verdict was good 

<Tv\ a - 78 Ga. 19*2. 



•- 



Cobb. 7S4. 






Ishment. Involuntary manslaughter, in the com- 
mission of an unlawful act. shall be punished by confinement and 
>r in th^ penitentiary for not less than one nor longer than 
three years. 

P Involuntary manslaughter, in the com- 

...--. d <»r performance of a lawful act. where there has not been 
- : 36 iry discretion and caution, shall be punished as for a 

misdemeanor. 

§7 | 1390.) Justifiable horn There being no rational distinc- 

. between excusable and justifiable homicide, it shall no longer 

at. Justifiable homicide is th^ killing of a human being by com- 

idment of the law in execution of public justice: by permission 

of the law in advancement of public justice: in self-defense, r in 

defense of habit; property, or person, against one who mani- 

stly intends or endeavors, by violence or surprise, to commit a 

on either; <»r against any p ns Qfl who manifestly intend 

and v<>r. i - ;nd tumultuous manner, to enter the 

ter f or the purpose of assaulting or offering per- 
person lling or being therein. 

When it is sought -:ify a homicide on the ground of self-defense or 

- >f habitation or property, this section must be construed together 
with sect B 72 I 73, according to whether affecting person, property or 
family: 226. 

ention or --against an impending or progressing wrong 

ntoall - - itifiable homicide. T -deliberately kill in revenge 

of a past injury, however heir - r reason has had time - ime its 

just Sable : t>4 < va, 454. 
If an assailant intern:- nmit a - -- only, to kill him is manslau_ - 

if h»* ir felony, the killing is s**lf-defense and justifiable 

• 
It is only when a felony is intended that the killing is justifiable. This - 

: justify a killing by one who believes he has grounds to fear that 
11 be injured, without regard to the extent of the injury: " r >96. 



29 FOURTH DIVISION.— ARTICLE 1. 

Eomicide. 

If one kills another to prevent an atrocious crime, there moat be ■ Qecen 
for it, and it must be done in good faith to the public, and not from revenge or 

in execution of a plan to take the life: 22 Ga. 212. 

In burglary, robbery, or attempt to kill or maim, the law classes lUCfa bur- 
glar, robber or felon with executions in advancement of public justice : 13 Ga. 

135. The owner has the right to shoot on" whom on sufficient ground- he be- 
lieves to be a burglar, and the person before Ik* surrenders seizing the gun to 

prevent being shot, does not deprive the owner of the right : 11 Ga. 479. 

One who resorts to a public saloon for drink has equal rights there, a- to 
that business, with the vender: 69 Ga. 226. 

The last clause contemplates the joint action of two or more persons, and 
the killing is justifiable although they do not intend a felony: 2 Ga. 17.'i. De- 
ceased was violently and unlawfully entering defendant's dwelling when he 
was shot: 34 Ga. 21. 

§71. (4331.) Fear must be reasonable. A bare fear of any of those ' 

offenses, to prevent which the homicide is alleged to have been com- 
mitted, shall not be sufficient to justify the killing. It must appear 
that the circumstances were sufficient to excite the fears of a reason- 
able man, and that the party killing really acted under the influence 
of those fears, and not in a spirit of revenge. 

The fears of the slayer should be those of a reasonable man — one reasonably 
courageous, reasonably self-possessed, and not those of a coward: 22 Ga. 76; 
92/464; 72/450. No discrimination is made in favor of a drunkard, or a coward. 
or any particular individual ; the circumstances must be such as to justify the 
fears of a reasonable man : 25 Ga. 527. 

If the circumstances are sufficient to excite the fears of a reasonable man. 
the killing will be attributed to them in the absence of proof to the contrary : 
31 Ga. 167. And that accused acted under those fears and not in a spirit of 
revenge: 70 Ga. 336. 

The sufficiency of the fears is a question for the jury. 42 Ga. 609. 

Defendant was justifiable if there be a reasonable doubt as to whether he 
acted under such fears, or had reason to feel that it was necessary to kill to 
save his own life : 71 Ga. 129. 

If the circumstances were not such as to excite the fears of a reasonable man 
that he was in any serious danger, the killing was murder. If they were suffi- 
cient to excite fears of bodily harm less than a felony, it would be voluntary 
manslaughter; if of a felonious assault, it would be justifiable: 72 Ga. 679. 

The doctrine of reasonable fears only applies when the danger is urgent and 
pressing, or apparently so. at the time of the killing: 91 Ga. 271. 

One of a posse justified in killing, when under fears of a felony upon the 
officer: 72 Ga. 85. 

Communicated threats, accompanied with occasional acts of personal vio- 
lence, are admissible to justify the reasonableness of fears : 5 Ga. 86. So. also, 
of naked threats unaccompanied with personal violence: 5Ga. 49. 136; 90/786. 

Hearsay not admissible to prove threats, although they were communicated 
to defendant : 69 Ga. 595. 

All the facts connected with a continuous feud that kept defendant in fear, 
admissible: 66 Ga. 309. 

Failure to charge the doctrine of reasonable fears, when there is a conviction 
of assault and battery, not error: 69 Ga. 766. 



i>s 






2, 73 



FOl KTH DIVISION.— ARTICLE 1. 



BO 



Homicide. 



*. 



Cob': ,7K 



§72. ( 1332.) Killing in defense. If after persuasion, remonstrance, 
or other gentle measures used, a forcible attack and invasion on the 
property or habitation of another cannot be prevented, it shall be 
justifiable homicide to kill the person so forcibly attacking and in- 
vading the property or habitation of another; but it must appear 
that such killing was absolutely necessary to prevent such attack 
and invasion, and that a serious injury was intended, or might accrue 
to the person, property, or family of the person killing. 

Section 73 does nor apply to the cases provided for by this section: 43 
Ga. 89. 

The only qualification to this section is that embraced in the latter part of 
it: 43 Ga. 89. 

Dues this apply to the defense of property which is not at the habitation? 
43 Ga. 89; 90/702. 

It must appear that a serious injury was intended, and the section has no 
application when the injury intended is not a felony, and the property attacked 
or involved is so inconsiderable that the injury threatened is not serious, but 
slight: 90 Ga. 702. 

£73. (4333.) The danger must be urgent. If a person kill another 
in his defense, it must appear that the danger was so urgent and 
pressing at the time of the killing, that, in order to save his own life, 
the killing of the other was absolutely necessary; and it must appear, 
also, that the person killed was the assailant, or that the slayer had 
really and in good faith endeavored to decline any further struggle 
before the mortal blow was given. 

In a contest, or personal rencounter, between two persons, where defendant 
set up the plea of self-defense, this and section 71, should be construed 
together, and defendant should bring himself within both: 57 Ga. 184; 70/602. 

One may kill another against whom he entertains malice, and not be guilty 
of murder. When the circumstances of the killing would not amount to 
murder, the proof of express malice will not make it so: 25 Ga. 527. 

To justify a homicide, defendant must depend upon the circumstances by 
which he was at the time surrounded. Were they sufficient to excite the fears 
of a reasonable man? Is it evident that the slayer acted under the influence 
of those fears, and not in a spirit of revenge? Was the danger so urgent and 
pressing at the time of the killing, that in order to save his own life the killing 
was absolutely necessary? Was the person killed the assailant? 2 Ga. 181 ; 
70/598 ; 79/67. The accused must demonstrate that there was a necessity for 
the killing, and that he took the life of deceased to save his own : 22 Ga. 76. 
State may prove the comparative sizes of defendant and deceased, and if by 
reason of superior strength defendant might have prevented the injury to 
himself, the killing was not absolutely necessary: 25 Ga. 699; 17/465; 70/135. 
Before the law of necessity can exist, a case of necessity must exist: 17 Ga. 465. 
Threats to hurt or injure defendant, do not create the necessity: 70 Ga. 617. 

The slayer must be faultless; he must owe no duty to the deceased — be 
under no obligation of law to make his own safety a secondary object: 17 Ga. 
465. It must appear that he acted without malice, not in a spirit of revenge, 
that deceased was the assailant, that in- order to save his own life it was 
necessary to kill his adversary, or that he was under the pressure of other 



:;i FOURTH DIVISION.— ARTICLE I. }78 



Homicide. 



equivalent circumstances: 65 Ga. 481. That which was justifiable on the part 

of the deceased, cannot be legal provocation to the slayer: 29 Ga. 170. 

Where, at the time the mortal blow was given, a battery with fl weapon 
likely to produce death was being committed upon the slayer, the fact that be 
provoked the battery by the use of opprobrious words, would not put him in 

the wrong for resisting it so far as was necessary to his defense ; and a seeming 
necessity, if acted upon in good faith, would be equivalent to-a real necessity : 
«9Ga. 140; 92/602. 

If accused provoked the difficulty — if he brought upon himself the necessity 
to kill to save his own life, the killing is murder: 24 Ga. 282; 34/84. If one 
provokes a difficulty and makes no effort to decline it, but take- life in the 
contest, it is not justifiable : 73Ga.79; 89/742. 

If deceased knew of his wife's infidelity, and laid a trap to catch defendant 
in the act of adultery with her, expecting and designing to BO catch him, and 
intending then and there to kill him, the killing would not be justifiable: 
91 Ga. 729. If accused provoked the assault for the purpose of making it a 
pretext, the killing would be murder. If he retreated with the view of avail- 
ing himself of it as an excuse to kill, it was murder, although it might have 
been necessary, from the nature of the assault, to kill to save his own life : 
10 Ga. 104. 

If there be a mutual intention to fight, and but one blow be stricken, a 
mutual combat exists: 46 Ga. 148. 

The latter clause does not apply to cases of mutual combat only, but to 
cases in which accused declines a contest on equal terms but shoots his assail- 
ant : 25 Ga. 699. 

In cases of self-defense from danger to life, during a quarrel, when both 
sides are not without blame, it must appear that accused was declining fur- 
ther struggle : 50 Ga. 230. If the object of defendant's interview with de- 
ceased was to kill or for mutual combat with deadly weapons, his offense 
would be murder or manslaughter accordingly as his conduct was marked by 
deliberation or excitement: 65 Ga. 431. 

It is error to charge that if two persons arm themselves on account of their 
quarrel and both draw, it is immaterial which fires first, there is malice 
aforethought in each: 33 Ga. 303. 

Temper and conduct of the parties may be shown to determine who was 
most likely to have brought about the emergency which resulted in the kill- 
ing: 17 Ga. 481. 

Bad feeling and mutual threats will not reduce the crime, when, at the 
time of the killing, deceased was doing nothing to excite fears, or render kill- 
ing necessary : 79 Ga. 696. No threat, menace, contemptuous gestures, or pre- 
sentation of weapons without a manifest intention to use them presently, 
will justify the killing: 65 Ga. 431 ; 90/786. 

Sometimes antecedent declarations of defendant are admissible to discover 
the quo animo with which the act was committed : 5 Ga. 85. 

Threats without overt acts made by the deceased, and not communicated to 
the slayer before the killing, are admissible merely to show the state of mind 
or feeling on the part of deceased : 18 Ga. 194. They were admitted in that 
case to illustrate the conduct of deceased and throw light upon his intention 
and purpose, at the brothel, at the time of the killing: 8S Ga. 737; 90/797: 
50/143 ; 39/718. AVhere the evidence was conflicting and left it uncertain which 
of the parties brought on the final conflict, there being some evidence to show- 
that both were armed, that the slayer was retiring and that deceased advanced 
upon him and fired the first shot, evidence of an uncommunicated threat by 
deceased to kill the accused, was admissible : 90 Ga. 793. An uncommunicated 



§8 74-76 



FOURTH DIVISION.— ARTICLE 1 



82 



Homicide. 



Cobb. 785. 



Cobb. 786. 



threat was admissible hero: 92 Ga. 480. Acts and threats of alleged conspira- 
tors: 71 Ga. 156. 

Previous uncommunicated threats are not admissible in justification of the 

killing as in self-defense: 39 Ga. 718; 14/358; 50/142; 29/470; 88/738; 18/194; 
83 16; 92/480. 

Defendant can offer proof of the violent character of deceased only when it 
is shown prima jqvic that the prisoner had been assailed and was seeking to 
defend himself: 70 Ga. 134; 75/415. 

General character for violence cannot be established by proof of specific acts : 
70 Ga. 134. A witness who had long known deceased could give his opinion 
of the hitter's character for violence: 70 Ga. 766. 

§74. (1790.) Mutual protection. Parents and children may mutu- 
ally protect each other, and justify the defense of the person or rep- 
utation of each other. 

Cited: 63 Ga. 793. 

It would seem, that the relation of brother and brother, or brother and sister, 
or sister and sister, may be said to stand upon the same footing of reason and 
justice, as that of parent and child : 18 Ga. 708. 

§75. (4334.) All other instances. All other instances which stand 
upon the same footing of reason and justice as those enumerated, 
shall be justifiable homicide. 

The previous sections referred to are 70, 71, 72, 73. Each of them con- 
templates defense against immediate and pressing danger: 64 Ga.468. The 
enumerated cases contain the element of defense or prevention: 88 Ga. 403. 
To stand upon the same footing, there must be present and impending danger, 
real or apparent, the killing must be for prevention, and it must be necessary, 
either really or apparently, as a measure of prevention : 91 Ga. 720. 

This section does not mean that we have no law of murder, and that in all 
cases the legal guilt or innocence of the prisoner is to depend on the enlight- 
ened conscience of the jury : 51 Ga. 303. 

The relation of brother and brother, or brother and sister, or sister and sis- 
ter, may be said to stand upon the same footing of reason and justice as that 
of parent and child, husband and wife, master and servant, especially if the 
person assailed is dependent upon the slayer for protection : 18 Ga. 704. 

If a man kills one who attempts the seduction of his wife under circum- 
stances of gross and direct aggravation, it is for the jury to find whether it is 
within this section: 29 Ga. 724; 91/733. 

The killing of one who is in the act of adultery with the slayer's wife, is 
within this section : 70 Ga. 825. 

The husband is not justifiable in killing after the adultery has been commit- 
ted : 88 Ga. 402. Nor after a past attempt to debauch one's wife: 91 Ga. 720. 
Nor after he has been told that indecent proposals have been made to his wife : 
50Ga. 556. 

It is only when the danger of a new act of adultery is urgent and pressing 
and the killing is necessary to prevent it, that it is justifiable: 91 Ga. 271, 720; 
81/444; 88/402. 

The. judge left it fairly to the jury to say whether this case was within the 
section : 8fj Ga. 108. As to the debauching of an affianced wife: 90 Ga. 473. 

£70. (4335.) Justifiable homicide not punished. The homicide appear- 
ing to be justifiable, the person indicted shall, upon the trial, be fully 
acquitted and discharged. 



88 FOURTH DIVISION.— ARTICLE 2. fl - ' 



Concealing child's death, advising to kill Infants, a bortion, ;mri foeticide. 



ARTICLE 2. 

CONCEALING CHILD'S DEATH, ADVISING TO KILL [NFANT8, ABORTION, 

AND FOETICIDE. 

§77. (4880.) Advisersto kill infants. If auy person shall counsel, c©bb,m 
advise, or direct a womau to kill the child wil h which she Is pregnant , 
and after she is delivered of such child she kill it, every such per- 
son so advising or directing, shall be deemed an accessory \>f\'ov<- the 
fact to such murder, and shall have the same punishment as the 
principal. 

§78. (4837.) Concealment of child's death. The constrained pre- °°ito, w*. 
sumption arising from the concealment of the death of any child, 
that the child whose death is concealed was therefore murdered by 
the mother, shall not be sufficient or conclusive evidence to convict 
the person indicted of the murder of her child, unless probable proof 
be given that the child was born alive, nor unless the circumstances 
attending it shall be such as shall satisfy the minds of the jury that 
the mother did willfully and maliciously destroy and take away the 
life of such child. 

§79. (4338.) Concealment of death of bastard child. If any woman ^J^ 865 " 8 * 
shall conceal or attempt to conceal the death of any issue of her Cobb - 785 - 
body, which, if it were born alive, would be a bastard, so that it 
may not come to light whether it was murdered or not, she is guilty 
of a misdemeanor. 

§80. (4337 a.) Foeticide, how punished. The willful killing of an A p ct ^ 876 ' 
unborn child so far developed as to be ordinarily called "quick." 
by any injury to the mother of such child, which would be murder 
if it resulted in the death of such mother, shall be punished by 
death or imprisonment for life, as the jury trying the case may 
recommend. 

§81. (4337b.) Use of medicine, assaidt with intent to murder . Any^ 01 ^ 87 *- 
person who shall administer to any woman, pregnant with a child, 
any medicine, drug, or substance whatever, or shall use or employ 
any instrument or other means, with intent thereby to destroy such 
child, unless the same shall have been necessary to preserve the life 
of such mother, or shall have been advised by two physicians to be 
necessary for such purpose, shall, in case the death of child or mother 
be thereby produced, be guilty of an assault with intent to murder. 

§82. (4337 c.) Abortion, 'punishment of. Any person who shall ^113. 
willfully administer to any pregnant woman any medicine, drug or 
substance, or anything whatever, or shall employ any instrument 
or means whatever, with intent thereby to produce the miscarriage 
or abortion of any such woman, unless the same shall have been neces- 
sary to preserve the life of such woman, or shall have been advised 
by two physicians to be necessary for that purpose, shall be guilty 
of a misdemeanor. 
3 



§§88-89 



FOURTH DIVISION.— ARTICLE 



84 



Mayhem. 



ARTICLE 8. 



Cobb. 786. 



Cobb, 786. 



Cobb, 7S6. 



Cobb. 786. 
Acts 1865-6, 
p. 233. 



Cobb, 786. 



Cobb, 786. 
Acts 1865-6, 
p. 283. 



Cobb, 786. 
Acta 1865-6, 

p. 233. 



MAYHEM. 

§83. (4889.) Mayhem. Mayhem shall consist in unlawfully depriv- 
ing a person of a member, or disfiguring, or rendering it useless. 

Not a felony at common law, except by castration : 5 Ga. 404. 

§84. (4840.) Special instances designated. If any person shall un- 
lawfully, and without sufficient cause or provocation, cut out or dis- 
able the tongue, put out an eye, slit or bite the nose, ear or lip, or 
cut or bite off the nose, ear or lip, or castrate, or cut, or bite off, or 
disable any other limb or member of another, with an intention in 
so doing to maim or disfigure such person, or shall voluntarily, ma- 
liciously, and of purpose, while fighting or otherwise, do any of these 
acts, every such person shall be guilty of mayhem. 

Cited: 80 Ga. 811. 

§85. (4841.) Cutting out or disabling the tongue. Cutting out the 
tongue, with the intention, or voluntarily, or maliciously, as ex- 
pressed in the preceding section, shall be punished by confinement 
and labor in the penitentiary for life. Disabling the tongue, with 
the intention, or voluntarily, or maliciously, as expressed in the pre- 
ceding section, shall be punished by confinement and labor in the 
penitentiary for not less than five years nor more than fifteen 
years . 

Cited: 80 Ga. 811. 

§86. (4342.) Putting out one eye. Putting out an eye with the inten- 
tion, or voluntarily, or maliciously, as before expressed, in fight or 
otherwise, is a misdemeanor. 

Cited: 80 Ga. 811. 

§87. (4343.) Both eyes or the only eye. Putting out the eyes of 
another, or the eye of another having but one eye, with a similar 
intention, or voluntarily, or maliciously, while fighting or otherwise, 
shall be punished by confinement and labor in the penitentiary for 
life. 

Cited: 80 Ga. 811. 

§88. (4344.) Slitting or biting the nose . Slitting or biting the nose, 
ear or lip of another, with the intention, or voluntarily, or malici- 
ously, as before expressed, while fighting or otherwise, is a misde- 
meanor. 

Cited: 80 Ga. 811. 

§89. (4845.) Cutting or biting off the nose ) ear or lip. Cutting or 
biting off the nose, ear or lip of another, with the intention, or vol- 
untarity, or maliciously, as before expressed, while fighting or other- 
wise, is a misdemeanor. 

Cited: 80 Ga. 811. 



35 FOURTH DIVISION.— ARTICLE I. 90-« 



Rape. 



§90. (4340.) Castration. Castrating another, with the intention, V;:;;'';™ 1 ; 
or voluntarily, or maliciously, as before expressed, while fighting or f '- 10 °- 

otherwise, shall be punished with death, but the punishment may be 
commuted in conformity with the provisions of section 63 of this 
Code. 

Cited: 80 Ga. 811. 

§91. (4347.) Wounding in a less degree . Willfully and maliciously CoM^tm. 

injuring, wounding, or disfiguring the private parts of another, with 
the intention aforesaid, whilst fighting or otherwise;, which injur- 
ing, wounding or disfiguring do not amount to castration, shall be 
punished by confinement and labor in the penitentiary for not less 
than five years nor longer than fifteen years. 

The private parts of a female are included under the terms "private parts 
of another": 80 Ga. 810. 

The nature and character of the injury need not be set forth more specific- 
ally than in the general words of the section : 80 Ga. 810. 

§92. (4348.) Other mayhems. Cutting or biting off, or disabling Cobb, 786-7. 

. v ' J ^ . . Acts 1866-6, 

any limb or member of another, not hereinbefore designated, with p. 233. 
the intention, or voluntarily, or maliciously, as before expressed, 
while fighting or otherwise, is a misdemeanor. 



ARTICLE 4. 



RAPE. 



§93. (4349. ) Definition. Rape is the carnal knowledge of a female, cot>b,787. 
forcibly and against her will. 

Actual carnal knowledge must be shown, either by direct or indirect testi- 
mony : 65 Ga. 731. 

Slight penetration is sufficient to complete the crime: 54 Ga. 440; 76/623. 

Circumstances affecting the testimony of the female and rules to be ob- 
served : 14 Ga. 56 ; 3/420 ; 42/481 ; 49/185 ; 77/706. 

Guilt or innocence not measured arbitrarily by the character of the testi- 
mony — positive or negative — but by the weight of the proof: 42 Ga. 473. 

It may be shown that the person charged to have been injured was a pros- 
titute: 3 Ga. 417. And that an offer of compromise was made and accepted: 
55 Ga. 303. 

A child under ten years cannot consent so as to rebut the presumption of 
force: 11 Ga. 227; 55/303; 56/36. It maybe proved that she was under ten. 
although the indictment does not allege it, and it is not necessary to show 
that the carnal knowledge was forcibly and against her will : 55 Ga. 304. 

A child six years of age, on whom the rape was alleged to have been com- 
mitted, held to be incompetent as a witness : 76 Ga. 76. Verdict supported for 
rape on a child nine years of age : 91 Ga. 10. And on a white prostitute by a 
negro: 65 Ga. 525. 



§§94-96 FOURTH DIVISION.— ARTICLE 5. 36 

Assaults, and assault and battery. 

This girl was eleven years old and had not arrived at years of puberty. She 
was bur a few months over the age when she could not, and every presumption 
is that she did not, consent, and it was for the jury to determine from her age 
and appearance, and the fact, if they believed it, that she was too young to 
feel desire and consent, whether she did consent: 62 Ga. 560. This girl was 
between the ages of ten and eleven years, and the court erred in the charge 
on the subject of consent: 95 Ga. 475. 

That the female made complaint soon after the assault maybe shown, but 
particulars of the complaint cannot be proved: 11 Ga. 226. Statements of 
the infant — under ten — to her mother immediately after the crime was com- 
mitted, admissible as part of the res gestm. Still she should have been sworn, if 
competent to testify: 55 Ga. 303. 

The State must establish the identity of the criminal and the defendant be- 
yond a reasonable doubt, but not that it was impossible for the offense to have 
been committed by anybody else, or that it might not, by bare possibility, have 
been done by another: 73 Ga. 107. The evidence as to the identity of the ac- 
cused was sufficient, notwithstanding it was possible for the prosecutrix to 
have been mistaken: 87 Ga. 579. 

It is error to charge the jury that if they believed the injured female 
swore the truth, they must find the defendant guilty: 83 Ga. 367. Where 
consummation was proven, it was unnecessary to charge the minor offense : 
87 Ga. 579. 

The indictment is good if it shows the sex without using the term ''female" : 
53 Ga. 50. Fornication is not included in rape: 60 Ga. 381 ; 77/515. 

There may be a verdict for assault with intent to commit a rape, on an 
indictment for rape : 14 Ga. 55 ; 11/226. But not for fornication : 60 Ga. 381. 

Acbhsee' §94. (4350.) Punishment. The crime of rape shall be punished 
p. i5i. with death, unless the defendant is recommended to mercy by the 

jury, in which case the punishment shall be the same as for an 

assault with intent to commit a rape. 



ARTICLE 5. 

ASSAULTS, AND ASSAULT AND BATTERY. 

Cobb, 787. |95 (4g57.) Definition of assault. An assault is an attempt to 
commit a violent injury on the person of another. 

Mere preparation to commit an injury, unaccompanied by a physical effort 
to do so, is not an assault : 95 Ga. 481. 

No such crime as an attempt to make an assault: 53 Ga. 205. 

To shoot at another with a gun loaded with powder only, at the distance 
of twenty steps, is an assault: 61 Ga. 582. 

When a person is badly stabbed with a knife, there is scarcely room to find 
a mere assault and battery : 78 Ga. 175. 

Conviction of assault on an indictment for assault to murder: 55 Ga. 319; 
and under an indictment for stabbing: 56 Ga. 408; and for shooting at an- 
other: 61 Ga. 582. 

§00. (4358.) Punishment. A bare assault is a misdemeanor. 



87 FOURTH DIVISION.— ARTICLE 5. §97 

Assaults, and assault and battery. 

§97. (4859.) A ssault with intent to murder. An assault with intent OobMaw. 
to murder, by using any weapon likely to produce death, shall be 
punished by imprisonment and labor in the penitentiary U>v not le-.- 
than two years nor longer than ten years. 






This offense must be proved to have been done under snob circumstance** As /vih 

that, if death had ensued, it would have been murder: 5 Ga. 54 ; 51/164, 403, /^ 
429; 52/88; 46/159. 

The specific intent to kill is a necessary ingredient of the offense, and its ex- 
istence is for the jury : 90 Ga. 691 . 

It is murder, if malice is on the mind of the slayer at the moment the killing 
is done and it moves him to do the killing: 77 Ga. 767. 

Subsequent sayings of defendant, admissible to show bitter hatred towards 
the person stabbed : 51 Ga. 429. 

If a man shoot with a pistol at, and hit, another, the law presumes prim" 
facie that he did it with malice : 39 Ga. 31 ; 41/485. And so as to stabbing : 61 
Ga. 43. One sober enough to intend to shoot, and to shoot at and hit another 
without justification, can form the intent to murder, and no drunkenness will 
negative such intent : 55 Ga. 30. The effect of the blow may be proven to ena- 
ble the jury to judge of the intent : 21 Ga. 221. 

When the assault was by inflicting a dangerous wound upon the head with 
a stick, a weapon likely to produce death, and no motive was disclosed, other 
than the wicked intention to take the life of a sleeping man, the conviction 
should stand : 59 Ga. 638. Conviction on circumstantial evidence may be had, 
although the jury may be unable to determine what defendant's motive really 
was : 89 Ga. 807. 

When death results from the unlawful use of a deadly weapon, the intention 
to kill is presumed ; if death does not result, intention is matter of inference 
by the jury : 92 Ga. 463. On a trial for this offense, it is error to charge that if 
an assault is made with a weapon in its nature likely to produce death, the law 
presumes it was made with intent to murder : 85 Ga . 131 ; 90/691 ; 92/464. Where 
death does not take place, there may be malice in giving the wound, without 
intention to kill. From the use of a deadly weapon in a manner calculated to 
injure, the law will presume an intention to injure : 85 Ga. 133. Malice, where 
no killing takes place, may coexist with an intention to injure and not go 
beyond : 92 Ga. 464. 

The character of the weapon must be shown. It may be done by producing 
it, or showing the effect of it, or other satisfactory evidence : 68 Ga. 818. The 
charge that a knife was used, was proven by showing the wound, how it was 
made, and the sensation produced : 57 Ga. 107. It is not indispensable to prove 
the precise weapon set forth in the indictment ; it is sufficient if it and the one 
proven by defendant were both likely to produce death and capable of inflict- 
ing the same kind of injury: 74 Ga. 431. Where several are indicted and the 
use of several weapons is charged, the State will not be forced to elect which 
w r eapon it will insist on : 59 Ga. 400. 

This offense may be committed without the use of a weapon likely to produce 
death: 32 Ga. 672. Putting poison into coffee to be drunk is an assault, and 
manifests malice : 92 Ga. 36. 

Provocation by words will not justify one in drawing and using a deadly 
weapon : 94 Ga. 80; 89/141. Merely drawing a pistol by the person who began 
the quarrel, will not deprive him of the right to use it in self-defense. Draw- 
ing it with intent to attack his adversary's life, or under circumstances cal- 
culated to excite reasonable fears, would outlaw the right of self-defense: 
94 Ga. 78. 



§97 FOURTH DIVISION.— ARTICLE 5. 38 

Assaults, and assault and battery. 

To justify on the ground of defense of person or goods, it must be shown 
that it was necessary in order to prevent the commission of a felony thereon: 
60 Ga. 609. 

Not justified, if there was no necessity for the shooting, or if it was of his 
creation by attacking prosecutor or invading his marital rights: 66 Ga. 541: 
When adulterer has no right to defend with a deadly weapon : 83 Ga. 744. 

When husband may prove, as justification, previous attempt to seduce his 
wife: 29 Ga. 723. In such case he may support the general character of his 
wife for chastity, when her character for virtue is assailed : 29 Ga. 723. When 
the injured husband allowed two months to elapse, frequently met the aggres- 
sor, and then, without a repetition of the wrong, sought an opportunity and 
shot him, it was not justifiable: 66 Ga. 90. 

If defendant stabbed after he was assailed, or was moved to act, not by mal- 
ice, but by sudden violent impulse of passion,, excited by either of the ways 
mentioned in section 65, it would not be this offense : 77 Ga. 767. 

Shooting to prevent an illegal arrest is prima facie not this offense: 91 
Ga. 204. 

Officers de facto are under the protection of the law: 89 Ga. 446. Stabbing a 
policeman in resisting arrest constitutes this offense : 75 Ga. 842. Resisting an 
arrest, not knowing that the person seeking, pistol in hand, to make it, was an 
officer, did not constitute this offense : 79 Ga. 768. This defendant acted know- 
ingly and was guilty : 66 Ga. 755. Defendant, with a threat, struck at a peace- 
maker with an axe : 55 Ga. 169. 

When several are charged and one is on trial, no conspiracy, or concert of 
action, need be shown: 60 Ga. 284. The facts here authorized a charge as to 
conspiracy : 61 Ga. 182. 

If prisoner was present participating and attempting to strike, he was 
equally guilty with the person who struck the blow: 21 Ga. 221. Rioters act- 
ing in concert are all guilty : 89 Ga. 446. 

No excuse for an assault that party assailed says, that if assailed it will be at 
the risk of the assailant: 28 Ga. 78. 

That shot found next day in one barrel of prisoner's gun were like those 
used at the shooting, was admissible : 57 Ga. 102. 

The State may prove the person assaulted was known by the name men- 
tioned in the proof as well as by that in the indictment : 46 Ga. 269. 

The charge should embrace only that part of the law of homicide made appli- 
cable by the facts : 35 Ga. 241 ; 73/577 ; 86/70 ; 68/570. And should embrace all 
of that: 54 Ga. 157; 51/402, 429; 63/693; 80/759; 60/284; 90/138. The doc- 
trine of reasonable fears should not be charged when not authorized by the 
testimony or the statement: 87 Ga. 149. 

An indictment for poisoning, not good : 90 Ga. 441. Corrected : 92 Ga. 36. 
These indictments were sufficient: 41 Ga. 155; 77/772; 95/482. This offense 
may be joined with shooting at another: 52 Ga. 565 : 26/613; 28/395; 29/724. 
Stabbing: 43 Ga. 218. 

When the allegations and proof warrant it, under an indictment for this 
offense, defendant may be found guilty of assault: 53 Ga. 206. Stabbing or 
assault and battery : 77 Ga. 768. Assault and battery : 12 Ga. 350 ; 55/319 ; 
74/431. Shooting at another: 54 Ga. 660; 70/720; 51/144; 92/470. 

A genera] verdict means the highest offense charged: 52 Ga. 565 ; 43/218. 
A verdict for whipping his wife should be arrested: 53 Ga. 113. 

These verdicts are supported: 91 Ga. 4; 88/257; 85/336. 

A sentence of five years, not excessive: 60 Ga. 284. 



89 FOURTH DIVISION .—ARTICLE 5. &§98,99 



Assaults, and assault and battery. 



§98. (4851.) Assault with mtent to rape. An assault with intent to^*^^ 8 *' 
commit a rape shall be punished by imprisonment u\ hard labor w 
the penitentiary for not less than one year nor longer than twenty 
years. 

The attempt to commit a rape is an attempt to know a female forcibly and 
against her will. This section makes it an offense by implication : 3 Ga. 418. 

The evidence must show an intention to forcibly have carnal knowledge of 
the female : 53 Ga. 50 ; 50/79 ; 63/355. 

Social customs founded on race difference considered : 91 Ga. 322. 

There may be an assault without actually touching the female : 91 Ga. 322. 
Seizing by the arm or attempting to turn the female over, an assault : 48 Ga. 16. 

Negro found in the bed of a girl at an unseasonable hour at night, and when 
she wakes has his hand on her arm, holding her wrist, and escapes when she 
calls for help, may be convicted : 35 Ga. 263 ; 48/16. 

The intent of the assault is a question for the jury: 56 Ga. 401. One may 
be guilty though the intent subsides and he desists, especially if from fright 
or inability to accomplish liis purpose : 48 Ga. 16 ; 50/79. Proximity of a 
house and the public road may have rendered the attempt fruitless but not 
guiltless : 68 Ga. 832. 

Presumptively a boy under fourteen years, is physically incapable, and it is 
incumbent on the State to prove capacity : 93 Ga. 531. 

It is sufficient to show the identity of the criminal and the accused to a 
moral certainty : 73 Ga. 107. It is a question for the jury : 56 Ga. 401. 

Evidence that the woman is a common prostitute, or that she is of ill fame, 
admissible to impeach her credibility, and disprove her statements as to force : 
3 Ga. 417 ; 42/481. 

Specific acts of lewdness, not admissible: 3 Ga. 422. 

Statements of the girl, made several hours afterwards and admitted by the 
accused to be true, received : 68 Ga. 824. 

A letter purporting to be from the female, identified by a witness who could 
not read : 77 Ga, 705. 

Where the only issue tried was for rape, the court should not have charged 
that a verdict for assault could be found, if the defendant was a physician 
and wrongfully exposed the person of a female patient: 72 Ga. 191. 

The testimony of a young and inexperienced witness was not free from dis- 
crepancies, but the jury were authorized to believe it as to the main fact: 
18 Ga. 343. 

Sufficient evidence to sustain the verdict : 56 Ga, 84 ; 93/117 ; 67/349 ; 
69/770; 68/832; 74/356. Sufficient here, but not entirely satisfactory: 89 Ga. 
303 ; 93/158. Barely sufficient : 91 Ga, 323. 

A verdict for the assault with intent, is illegal when the evidence is con- 
clusive that the carnal knowledge was realized: 62 Ga. 558. But if there is 
evidence tc sustain either offense, the jury may find the lower grade: 6S Ga. 
760; 73/107. 

Sentence to twenty years, not interfered with : 64 Ga. 437. 

§99. (4360.) Assault with intent to rob. An assault with intent toCobvrer. 
rob is where any person shall, with any offensive or dangerous 
weapon or instrument, unlawfully and maliciously assault another, 
or shall, by menaces, or in and by any forcible or violent manner, 
demand any money, goods, or chattels, of or from any other person, 
with intent to commit robbery upon such person. 



§§100-108 FOURTH DIVISION.— ARTICLE 5. 40 

Assaults, and assault and battery. 



Oobk.rer. giQO. (4361.) Punishment. An assault with intent to rob shall be 
punished by confinement and labor in the penitentiary for not less 
than two years nor more than four years. 

AetsUKH! 8101' (4862.) Assault to injure clothes. An assault with intent to 
spoil or injure clothes or garments, is where any person shall will- 
fully and maliciously assault a person with an intent to tear, spoil, 
cut. bum, or deface, and shall tear, spoil, cut, burn, or deface the 
garments or clothes of such person; and is a misdemeanor. 

Cobb.TNv §102 (4363.) Battert/ and punishment Battery is the unlawful 
beating of another, and is a misdemeanor. 

A schoolboy throwing a stone in sport at, and hitting another, expecting 
him to dodge, is guilty: 63 Ga. 578. 

To beat, is not merely to whip, wound or hurt, but includes any unlawful 
imposition of hand or arm. To put an arm around the neck of another's wife, 
without some innocent reason or excuse, is an assault and battery : 60 Ga. 509. 

"Whipping a child with a saw an abuse of parental authority: 54 Ga. 281. A 
nurse convicted, on circumstantial evidence, of a battery on a child : 64 Ga. 449. 

When one in charge of premises may remove a drunken man without com- 
mitting this offense: 89 Ga. 768. The principle of reasonable fears does not 
seem to apply to this: 69 Ga. 766. No justification that defendant owned the 
house, it being occupied by another, nor that the assaulted person had talked 
about defendant and his wife : 12 Ga. 461. 

One is not relieved from an assault on abandoning the attempt to commit a 
higher offense : 86 Ga. 329. 

Under an indictment, solicitor-general may try either one of two assaults 
and batteries committed on the same day, but not both: 17 Ga. 356. Con- 
viction in a mayor's court not a bar, although it is the same transaction : 
72 Ga. 212. On an indictment for assault and battery against three, two may 
be found guilty of the offense charged, and the other of an assault : 33 Ga. 132. 

On an indictment for assault with intent to murder, there may be a con- 
viction of assault and battery where the battery is alleged: 12 Ga. 350; 
74/431 ; 77/767. So also on an indictment for stabbing: 25 Ga. 396 ; 74/375. 

An indictment for assault simply alleges that on a given day, in the county, 
the defendant with force and arms committed an assault upon another named 
person, and then and there unlawfully, beat, bruised and ill-treated him. The 
exact manner and means are left to be developed by the evidence: 63 Ga. 583. 

Cobb, 8i i . § 1 08 . ( 4094 . ) Opprobrious words may be proven in defense . On the trial 
of an indictment for an assault, or an assault and battery, the 
defendant may give in evidence to the jury any opprobrious words, 
or abusive language, used by the prosecutor, or person assaulted or 
beaten; and such words and language may or may not amount to a 
justification, according to the nature and extent of the battery, all 
of which shall be determined by the jury. 

This embraces such cases where the words are uttered in the presence of the 
party, which, in their nature, are, supposed to arouse the passions and justify, 
under circumstances to he adjudged by tin 1 jury, instant and appropriate resent- 
ment, not disproportioned to the provocation. Newspaper articles insufficient 
to justify: 41 Ga. 527; 42/613. 



41 FOURTH DIVISION.— -ARTICLE 6. 104-106 

False Imprisonment. 



It applies between private persons, not between public officers and those in 
their custody ; and insolence from a Colored prisoner to ;i white policeman is no 

excuse for beating the prisoner with a club: 80 Ga. 546. 

Where the defense is justification on account of opprobrious words, the jury 
may take into consideration the relative size and strength of the parties, and 
all the circumstances : 68 Ga. 200. Abusive Language, without more, not ;■ valid 
defense to a battery with a rock : 71 . Ga. 865. Nor is the fact that the person 
who used the opprobrious words had a knife in his hands, but did not advance 
or offer to strike: 71 Ga. 865. One not justified in striking for language which 
lie provoked by opprobrious epithets : 71 Ga. 865. A blow with a small walking 
stick in return for opprobrious words, is not such considerable provocation as 
would rebut the presumption of malice in killing, if the battery was not dis- 
proportioned to the insult offered : 55 Ga. 48. Opprobrious words will not justify 
stabbing: 56 Ga. 409; nor an attack with a deadly weapon : 92 Ga. 602; 94/82. 

The jury may take into consideration whether the defendant used the first 
opprobrious words : 46 Ga. 455. 

Section not involved here: 58 Ga. 212. Cited : 61 Ga. 381. 

§104. (4573.) Whipping wife. If a man shall whip, beat, or other- Acteww, 
wise cruelly maltreat his wife, he shall be guilty of a misdemeanor. 186 ^2s 
On such trials the wife shall be a competent witness. 

The wife is a competent witness, and may be impeached as other witnesses : 
76 Ga. 96 ; 75/577. 

Several witnesses may testify to several distinct beatings within two years, 
and it is error to require the State to elect one of the transactions on which to 
rely : 75 Ga. 576. 

Judgment arrested because, on an indictment for assault with intent to 
murder, defendant was convicted of whipping his wife : 53 Ga. 113. 

§105. (4821i.) Punishing convicts ivithout authority. If any person, Actsisso-i. 
other than the one appointed, in pursuance of section 1170 of this 
Code, for the purpose, shall inflict punishment upon a convict for a 
violation of the rules .prescribed for their government, he shall be 
punished by imprisonment in the penitentiary, for not less than six 
months nor exceeding two years. 



ARTICLE 6. 



FALSE IMPRISONMENT. 



§106. (4364. ) False imprisonment . False imprisonment is a violation Cobb - :ss - 
of the personal liberty of a person, and consists in confinement or 
detention of such person without sufficient legal authority. 

If defendant, as agent of the State, had the fugitive from justice in his 
custody, and without unreasonable delay transported him. he is not guilty: 
42 Ga. 358. 

When a private person who arrests a fugitive without a warrant, is guilty : 
63 Ga. 513. 

Jurisdiction in the county where the illegal arrest occurs, and also in the 
county of the illegal detention : 63 Ga. 513. 



§§ 107-110 



FOURTH DIVISION.— ARTICLE 7 



42 



Kidnapping. 



Cobb. 7S8. 



Cobb. 788. 
Acts L886, 

p. 68. 



$107. (4365.) Punishment. Any person who arrests, confines, or 
detains a person without process, warrant, or legal authority to 
justify it, is guilty of a misdemeanor. 

§108. (4800.) When under color of legal process. The arrest, con- 
finement, or detention of a person by the warrant, mandate, or 
process of a magistrate, being manifestly illegal, and showing 
malice and oppression, the magistrate shall be removed from 
office: and he, and every person knowingly and maliciously con- 
cerned therein, shall be punished by imprisonment and labor in the 
penitentiary for not less than one nor more than two years. 

The magistrate is not entitled to the right of appearance and being heard 
before the grand jury when the true bill is found: 48 Ga. 354. 



ARTICLE 7, 



Cobb, 788. 
Acts 1876, 

p. 39. 
1880-1, 

pp. 74. 75. 



KIDNAPPING. 

Cobb. 788. §109. (4307.) Kidnapping. Every person who forcibly abducts 
or steals away any person, without lawful authority, or warrant, 
from this State or any county thereof, and sends or conveys such 
person beyond the limits of the State or a county thereof against 
his will, is guilty of kidnapping. 

A warrant against the father is a nullity, it not appearing that he ever 
parted with his parental right to the custody of the child : 94 Ga. 257. 

§110. (4808.) Inveigling children. Any person who forcibly, ma- 
liciously or fraudulently leads, takes or carries away, or decoys or 
entices away, any child under the age of eighteen years from its 
parent or guardian, or against his will, or without his consent, is 
guilty of kidnapping. 

Inveigling children is as much kidnapping as the forcible abduction or 
stealing of a person : 74 Ga. 12. 

This section provides for two cases : Where the child has a parent or guar- 
dian, the act must be done without the consent and against the will of the 
parent or guardian, irrespective of that of the child. If there be no parent 
or guardian, it must be against the will and without the consent of the child : 
74 Ga. 191, 821. 

Letter from accused to person abducted, admissible: 74 Ga. 12. 

Evidence of the parent's harsh treatment of his family, inadmissible: 74 
(in. 192. 

One who persuaded a girl sixteen or seventeen years old to leave her parents 
without their knowledge and consent, and go with him to another county, was 
guilty: 74 Ga. 821. 

Father's unwillingness and effort to prevent it may be proved: 74 Ga. 192. 

If a man, without force or fraud, takes a female of fourteen years of age 
away with her consent and marries her, it is not a crime: 91 Ga. 763. 

A sufficient indictment: 74 Ga. 13. 

Acts cited in the margin, constitutional : 74 Ga. 12. 



48 FOURTH DIVISION.— .ARTICLE 8. gg 111, 112 



Stabbing. 



gill. (4307, 4808.) Punishment. Kidnapping is punishable bygjjjgj^ 

imprisonment and labor in the penitentiary for not less than four PP-WfW- 
nor more than seven years. • 



ARTICLE 8. 

STABBING. 



§112. (4fS69.) Stabbing, punishmsnt. Any person who shall be Cf f ;[' h :™% 
guilty of the act of stabbing another, except in his own defense or p« 
other circumstances of justification, with a sword, dirk or knife, or 
other instrument of the like kind, shall be punished as for a mis- 
demeanor: Provided, that if such stabbing shall produce death, the 
offender shall be guilty of murder, or manslaughter, according to 
the facts and circumstances of the case; or if such stabbing shall 
not produce death, and the facts and circumstances show that it was 
the intention of the person stabbing to commit murder, the offender 
shall be guilty of an assault with intent to murder. 

To constitute stabbing the knife need not enter further than to penetrate 
the skin and draw blood : 56 Ga. 409. 

The general rule is, that whether the stabbing is in self-defense depends on 
the nature and violence of the assault made on him who stabs : 36 Ga. 91. 

Opprobrious words will not justify stabbing : 56 Ga. 409. 

Defendant must show that he did the act in self-defense, and the jury should 
not be restricted to the circumstances which existed at the exact point of 
time: 15 Ga. 117. The court should not withdraw from them circumstances 
of justification, such as inequality in strength, age, weight or size, the exact 
position of the parties when the stabbing was done, and the character of blows 
inflicted by the prosecutor : 75 Ga. 482. If they agreed to fight — the prosecu- 
tor being unarmed — and defendant used a knife from the first, it is not self- 
defense : 31 Ga. 411. 

The physical inequality between the parties may be shown: 15 Ga. 117. 
Unless there be great inequality between them in combat, the assailed cannot 
justifiably resent a blow with the fist, by stabbing: 36 Ga. 91. 

Where there were two distinct fights, evidence of the former, is not admis- 
sible on the trial of the latter : 25 Ga. 396 ; 74/375. If the defendant give in 
evidence a previous difficulty to show a conspiracy to do him harm, the State 
may prove other incidents of the same difficulty: 31 Ga. 411. 

When the evidence clearly proves the offense as charged, it is not error, as 
against the defendant, to charge that there can be no verdict but that of 
guilty or not guilty : 56 Ga. 408. 

On an indictment for stabbing, there may be a verdict of assault and bat- 
tery : 25 Ga. 396 ; 56/408 ; 74/375. And on an indictment for assault with intent 
to murder by stabbing, there may be a conviction of stabbing: 77 Ga. 767; 
83/378. 

An indictment should negative the exception : 83 Ga. 379. 

On an indictment for assault with intent to murder, and unlawful stabbing, 
a verdict of stabbing, without negativing self-defense or other justification, is 
good : 62 Ga. 167 ; 51/144 ; 83/378. 

This verdict is supported : 86 Ga. 123. 



SS L18, 114 FOURTH DIVISION.— ARTICLES 9, 10. 44 

Shooting at another. Abandonment of child. 




ARTICLE 9. 

SHOOTING AT ANOTHER. 

y* 6 " 6 ' §113. (4370.) Shooting at another. Any person who shall be guilty 
§78-9,p.68. f the offense of shooting at another, except in his own defense, or 

1895, p. Go. ° ' x ' 

under circumstances of justification, according to the principles of 
this Code, with a gun, pistol, or other instrument of the like kind, 
shall be punished by confinement in the penitentiary not less than 
one nor more than four years. 

It is very material whether or not the gun is loaded and how loaded: 
28 Ga. 395. Whether loaded with ball is not an issuable fact: 26 Ga. 611. To 
shoot at another with a pistol loaded with powder only, within the distance 
to which the pistol will carry when so shot, will constitute the offense : 84 Ga. 
577 ; 61/582. Error to charge that if defendant presented the pistol and fired, 
the presumption would be it was loaded with ball or shot: 64 Ga. 450. 

After a dangerous assault is over long enough to run sixty yards and return, 
to shoot the assailant solely because of the past assault is unlawful : 58 Ga. 309. 
The doctrine of reasonable fears, or defense of habitation, cannot be urged to 
justify shooting at one who is retreating from person and habitation: 58 Ga. 
309. Not justifiable to shoot an officer after an illegal arrest and unauthorized 
search voluntarily submitted to : 30 Ga. 426. 

If the killing would be justifiable, the failure to kill would not subject the 
party to this offense : 29 Ga. 724. 

Negro laborer justified in shooting in self-defense of shooting by superin- 
tendent of plantation : 77 Ga. 156. 

One who, in South Carolina, shoots across the river at another in this State, 
and misses him, is guilty : 92 Ga. 41. 

One who aided and abetted in the shooting, convicted under an indictment 
charging all as principals in the first degree : 77 Ga. 764. 

Threats to mob defendant after the shooting, inadmissible : 49 Ga. 306. 

This offense and an assault with intent to murder may be joined: 28 Ga. 
395 ; 29/724 ; 30/427 ; 52/565 ; 43/218. State not compelled to elect : 26 Ga. 613. 

Under a count for assault with intent to murder by shooting, there may be 
a conviction of this offense : 70 Ga. 720 ; 54/660 ; 51/144 ; 92/470. 

A general verdict of guilty means the highest grade of crime charged : 
55 Ga. 131. 



ARTICLE 10. 

ABANDONMENT OF CHILD. 



Actsisee, §114. (4373.) Abandonment of child. If any father shall willfully 

i8f&-9," and voluntarily abandon his child, leaving it in a dependent and 

destitute condition, he shall be guilty of a misdemeanor. The wife 

shall be a competent witness in such cases to testify for or against 

ber husband. 

It must appear that, in this State, he voluntarily abandoned the child and 
also left it in a dependent and destitute condition : 80 Ga. Ill, 107 ; 96/297. 



45 FOURTH DIVISION.— ARTICLES II. 12. g§ 115, 110 



Criminal negligence. Blackmail and threatening Letters. 

Abandonment means the forsaking and desertion of his children; refusal 
to live where they are domiciled, and to perforin the duties of a parent: 
80 Ga. 1 14. 

Accused under pressure of prosecution for seduction and bastardy married 
and left his wife next day. The child was born afterwards. He persisted in 
the abandonment, and was guilty : 80 Ga. 704. 

Bad conduct of mother will not excuse him : 80 Ga. 107. 

Indictment must allege that the abandonment was willful, and that the child 
was left in a destitute condition : 78 Ga. 188. 

"Voluntarily" means that he went off without any coercive cause, but freely 
as a pure volunteer because he wanted to leave his family : 78 Ga. 189. 

"Dependent" does not convey the idea of absolute destitution : 78 Ga. 189. 

If he sends wife and child to another county and the child thereby be- 
comes dependent and destitute, he is indictable in that county: 80 Ga. 107. 

"Or" instead of "and" in this section : 80 Ga. 111. 



ARTICLE 11 



CRIMINAL NEGLIGENCE. 



§115. (4586 b.) Criminal negligence. If any person employed in A p ct f 1 1 1 876, 
any capacity by any railroad company doing business in this State, 1895 ' p - 63 - 
shall, in the course of such employment, be guilty of negligence, 
either by omission of duty or by any act of commission, in relation 
to the matters intrusted to him, or about which he is employed, from 
which negligence serious bodily injury, but not death, occurs to an- 
other, he shall be guilty of criminal negligence, and shall be pun- 
ished by confinement in the penitentiary not less than one nor more 
than two years, in the discretion of the court. 

Cited: 70 Ga. 221,440; 72/50. 



ARTICLE 12. 



BLACKMAIL AND THREATENING LETTERS. 



§116. Blackmail defined. If any person shall, verbally, or by print- Aet 5 8 1887, 
ing, or writing, accuse another of a crime or offense, or expose or 1888 '^- 46 ' 
publish any of his or her personal or business acts, infirmities, fail- 
ings, or compel any person to do any act, or to refrain from doing 
any lawful act, against his will, with intent to extort money or other 
thing of value from any person, or if any person shall attempt or 
threaten to do any of the acts above enumerated, with the intent to 
extort money or other thing of value, such person shall be guilty 
of blackmail, and shall be punished as for a misdemeanor: Provided, 



§§117-119 FOURTH DIVISION.— ARTICLES 13, 14. 46 

Conspiracy. Interfering with apprentices, servants, croppers, etc. 

that qo court in this State shall have jurisdiction to inquire into 
any case under this section before presentment made or indictment 
found, by the grand jury of the county in which the offense has 
been committed. 

§117. (4500. ) Th reaten ing letters. If any person shall knowingly send 
or deliver any letter or writing, threatening to accuse another of a 
crime, with intent to extort money, goods, chattels, or other valua- 
ble thing; or threatening to maim, wound, kill, or murder such per- 
son, or any of his family, or to burn or otherwise destroy or injure 
his house, or other property, real or personal, though no money, 
goods, chattels, or other valuable thing be demanded, he shall be 
punished by imprisonment and labor in the penitentiary for any 
time not less than two years nor longer than five years. 



ARTICLE 13. 



CONSPIRACY. 



bb, 808. §118. (4497.) Conspiracy. If any two or more persons shall con- 
spire or agree, falsely and maliciously, to charge and indict any in- 
nocent person of a crime, who is accordingly indicted and acquitted, 
such persons so conspiring shall be punished by imprisonment and 
labor in the penitentiary for not less than twelve months nor longer 
than five years. 



ARTICLE 14. 



INTERFERING WITH APPRENTICES, SERVANTS, CROPPERS, FARM LABORERS, 

AND EMPLOYEES. 

ActeM62-3, §110. (4498.) Enticing ciway apprentices. If any two or more per- 
sons shall associate themselves together in any society or organiza- 
tion, with intent and for the purpose of preventing, in any manner, 
any person from apprenticing himself to learn and practice any 
trade, craft, vocation, or calling, or for the purpose of inducing, by 
persuasion, threats, fraud, or any other means, any apprentice or 
apprenl ices, 1 o any such trade, craft, vocation, or calling, to leave the 
emtjioyment of their employer, or for the purpose, by any means, of 
pre^nting or deterring any person from learning and practicing any 
such trade, craft, vocation, or calling, every such person so associ- 
ating himself in such society or organization shall be guilty of a mis- 
demeanor. 



47 FOURTH DIVISION.— ARTICLE 15. &§120-124 

1 ii i*-rf «• i «iif-<- with ciiii>loy«'«:H. 

§120. (4499.) Evidence on trial. Upon fin: trial of any person an- i f^ USt 
der the preceding section, any person may be made a witness; and 
no statements made by him, on such trial, shall be given in evidence 

against him, except; upon an indictment for perjury. 

§121. (4500.) Employing serv ant, cropper, or farm laborer of another , ^Sj^Jgg 6, 
When the servant, cropper, or farm laborer of another is under writ- Jg* M 
ten contract attested by one or more witnesses, if any person .shall x ^% m 
employ such servant, cropper, or farm laborer during the term for ~ / 
which he is employed, knowing that he is so employed, and that the ""/T^ 
term of service has not expired, such person so offending shall be 
guilty of a misdemeanor. 

The contract must be in writing and attested by one or more witnesses, but 
need not be signed by both parties. If signed by the servant and accepted by 
the master, this sufficient : 72 Ga. 482. 

"Employment" not synonymous with "hiring," but means to use a servant 
for a special or general purpose, inconsistent with his duty to his employer, 
with a mutual benefit : 72 Ga. 482. 

One employed to bring hands and superintend them, not a servant: 44 Ga. 
328. 

An accusation must state the name of the master at the time of the illegal 
act ; and if defendant acted by an agent, the name of the agent must be given : 
46 Ga. 624. 

A sufficient indictment : 44 Ga. 328. 

§122. (4500.) Enticing, and attempting to entice away, a servant, Actsiaee, 
cropper, or farm laborer. If any person shall, by offering higher wages Jjjj*- 
or in any other way, entice, persuade or decoy, or attempt to entice, i88' 2 -|_ 6Q 
persuade or decoy any servant, cropper, or farm laborer, whether 
under a written or parol contract, after he shall have actually en- 
tered the service of his employer, to leave his employer during the 
term of service, knowing that said servant, cropper or farm laborer 
was so employed, he shall be guilty of a misdemeanor. 



ARTICLE 15. 



INTERFERENCE WITH EMPLOYEES. 



§123. Unlawfully preventing laborers, etc. If any person or persons, Ae< f ( l 883 
by threats, violence, intimidation or other unlawful means, shall 
prevent or attempt to prevent any person or persons in this State 
from engaging in, remaining in, or performing the business, labor or 
duties of any lawful employment or occupation, such offender or of- 
fenders shall be guilty of a misdemeanor. 

§124. Conspiring or attempting to prevent. If any person or persons, Actsiss: 
singly or together, or in combination, shall conspire to prevent or 
attempt to prevent any person or persons, by threats, violence or in- 
timidation, from engaging in, remaining in, or performing the busi- 



§§125-128 FOURTH DIVISION.— ARTICLES 16, IT. 48 

Employers must provide seats for females. Protection of discharged employees. 

ness, Labor, or duties o\ % any lawful employment or occupation, such 
offender or offenders shall be guilty of a misdemeanor. 

"^iV^ §125. Hindering person who desires to labor, etc If any person or 

persons, singly or by conspiring together, shall hinder any person or 
persons who desire to labor from so doing, or hinder any person, by 
threats, violence or intimidation, from being employed as laborer or 
employee, such offender shall be guilty of a misdemeanor. 

'ViV:^ 7 ' §126. Hindering owner from working property or hiring laborers. If 
any person or persons, by threats, violence, intimidation or other un- 
lawful means, shall hinder the owner, manager or proprietor for the 
time being from controlling, using, operating or working any prop- 
erty in any lawful occupation, or shall by such means hinder such 
person from hiring or employing laborers or employees, such offen- 
der or offenders shall be guilty of a misdemeanor. 



ARTICLE 16 

EMPLOYERS MUST PROVIDE SEATS FOR FEMALES. 

ActsissQ, §127. Employers of females must provide seats. All persons and cor- 
1895. p. 63. porations employing females in manufacturing, mechanical or mer- 
cantile establishments, must provide suitable seats, and permit their 
use by such females wdien not necessarily engaged in the active duties 
for which they were employed. Any person who shall fail to comply 
with the requirements of this section, and the officers of any corpo- 
ration which shall fail to comply with said requirements, shall be 
guilty of a misdemeanor. 



ARTICLE 17. 

PROTECTION OF DISCHARGED EMPLOYEES. 

^SSggSoR §128. Preventing or attempAing to prevent re-employment. If any rail- 
1895. p. w,. r oad corporation or company or other corporation doing business in 
this State, or any agent or employer of any such company or cor- 
poration, after having discharged any employee from the service of 
any such company or corporation, shall prevent or attempt to pre- 
vent by word, writing, sign or other means, directly or indirectly, 
such discharged employee from obtaining employment with any other 
person, company or corporation, such person, agent, employer, com' 
pany or corporation shall be guilty of a misdemeanor, and shall be 
liable in penal damages to such discharged person, to be recovered by 
ci vi 1 action ; but this section shall not be construed as prohibiting any 
person, agent, employer, company or corporation from giving in 
writing any other person, company or corporation to whom such 



49 FOURTH DIVISION.— ARTICLE 17 L29-182 



Protection of discharged employ* i 



discharged person has applied for employment, a truthful statemenl 
of the reasons for such discharge, and shall furnish to such dis- 
charged employee on his application, to such address as may be 

u;iv<m by such discharged employee, within ten days of such applica- 
tion niiL<In jim aforesaid, a true copy of any such written statement. 

&129. Liability of corporation for permitting violation of this Article. pp.isMtft! 
If any milroad or railway company or corporation, or other corpora- 
tion doing business in this State, shall authorize or permit, with its 
knowledge and consent, any of its or their officers, agents or employ- 
ers to commit either or any of the acts prohibited in this Article 
(except as in this Article provided), such company or corporation 
shall be liable in treble damages to such employee so prevented 
from obtaining employment, to be recovered by him in a civil act ion . 

§130. Statement of cause of discharge to be furnished discharged env- x £$§£\jik\ 
ployee. It shall be the duty. of any person, officer, agent, employer, 
or company or corporation aforesaid, after having discharged any 
employee from the service of any such corporation or company, 
upon written demand of such employee, to furnish to him, within ten 
days from the application for the same, a full statement in writing 
of the cause or causes of his discharge; and if any such person, offi- 
cer, agent, employer, or company or corporation as aforesaid shall 
refuse, within ten days after demand as herein provided, to furnish 
such statement to such discharged employee, it shall be ever after 
unlawful for any such person, company or corporation to furnish 
any statement of the cause of such discharge to any person or cor- 
poration, or to in any way blacklist, or to prevent such discharged 
person from procuring employment elsewhere, subject to the penal- 
ties prescribed in section 128 of this Article: Provided, that said 
written cause of discharge, when so made as aforesaid, at the re- 
quest of such discharged employee, shall never be used as the cause 
for an action for slander or for libel, either civil or criminal, against 
the person or authority furnishing the same. 

§181. Witnesses compelled to testify. On the trial of any person for^^^^' 
offending against the provisions of this Article, any other person 
who may have authorized or permitted, with knowledge and con- 
sent as aforesaid, any such offense, or who may have participated 
in the same, shall be a competent witness, and be compelled to 
give evidence, and nothing then said by such witness shall at any 
time be received or given in evidence against him in any prosecution 
against the said witness, except on an indictment for perjury in any 
matter to which he may have testified. 

§182. Production of boohs and papers. On the trial of any person ^SjaJ-w 
for any violation of this Article, the prosecution shall have the au- 
thority and process of the court trying the case to compel the pro- 
duction in court, to be used in evidence in the case, the books and 
4 



§§133, UU FOURTH DIVISION.— ARTICLE 1*7. 50 



Protection of discharged employees. 



papers o( any such person, company or corporation; and a failure to 
produce the same, after such reasonable notice as the court may in 
each case provide, shall be a contempt of court, and punishable as 
such as against the custodian or person, company or corporation 
having the control or in charge of such books and papers, who shall 
fail to produce the same. 

A pp S iitTsi' §133. Bequest or not tee must be divulged. It shall be the duty of any 
person, company, or corporation, who has received any request or 
notice in writing, sign, word or otherwise, from any other person, 
company or corporation, preventing or attempting to prevent the 
employment of any person discharged from the service of either of 
the latter, on demand of such discharged employee, to furnish to 
such employee, within ten days after such demand, a true statement 
of the nature of such request or notice, and if in writing, a copy of 
the same, and if a sign, the interpretation thereof, with the name 
of the person, company or corporation furnishing the same, with 
the place of business of the person or authority furnishing the 
same; and a violation of this section shall subject the offender to all 
the penalties, civil and criminal, provided by the foregoing sections 
of this Article. 

Acts isoo-1, S134. Applicable to railroads having separate divisions, etc. The 

pp.183-185. .... 

provisions of this Article shall apply to and prevent, under all the 
penalties aforesaid, railroad companies or corporations, under the 
same general management and control, but having separate divisions, 
superintendents or master mechanics, master machinists or similar 
officers for separate or different lines, their officers, agents and 
employers, from preventing or attempting to prevent the employ- 
ment of any such discharged person by any other separate division, 
or officer, or agent or employer of any such separate railroad line 
or lines. 






51 FIFTH DIVISION.— ARTICLE 1. L85-188 



Arson. 



FIFTH DIVISION. 



Crimes Against the Habitations of Persons, 



ARTICLE 1. 'fy^W? 

ARSON. 

§135. (4374.) Crimes against habitations. Crimes against the hab- Cobb - 7Wj - 
itations of individuals shall consist of : 1. Arson. 2. Burglary. 

§136. (4375.) Arson. Arson is the malicious and willful burning Cobb - 789 - 
of the house or outhouse of another. 

AVhen nothing appears to the contrary, the law implies that the fire was the 
result of accident or providential cause: 29 Ga. 105. 

This offense is seldom established by positive testimony — its character 
makes it dependent for conviction on confessions or corroboration, and the 
force given to corroboration must be left to the jury : 64 Ga. 605. 

The evidence must connect the accused with the crime beyond a reasonable 
doubt : 85 Ga, 535. 

§137. (4376.) Punishment of arson in city, etc. The willful and Cobb.^789. 
malicious burning, or setting fire to, or attempting to burn, a house ^g 150 - m 
in a city, town, or village, whether the house be the property of the fo-'atf- f 
perpetrator or of another, shall be punished with death; but the 
punishment may be commuted in conformity with the provisions of 
section 63 of this Code. 

A prisoner who burns a hole in the door, or attempts to burn one through 
the door of a guardhouse, for the purpose of escaping, and not with the intent 
to consume, or generally injure, the building, and neither of such results 
occurring, is not guilty under this, or section 143: 53 Ga, 33; 87/12. 

The attempt to burn means an attempt to commit the burning defined in 
section 143 : 53 Ga. 34. 

Defendant's declarations were criminating admissions as distinguished from 
confessions, and it was error to denominate them confessions: 90 Ga. 468. 

This evidence was insufficient : 57 Ga. 482. 

Malicious mischief not included in arson : 80 Ga. 104. 

§138. (4377.) Burning occupied dwelling on farm. The willful and^obb.^. 
malicious burning of an occupied dwelling-house of another on a p- m r 
farm or plantation, or elsewhere, shall be punished with death, but fa*, f' 
the punishment may be commuted m conformity with the provi- 
sions of section 63 of this Code. 



§§ 139-141 FIFTH DIVISION. —ARTICLE 1. 52 

Arson. 

Every Rouse used as a dwelling-house, is a dwelling-house within this sec- 
tion: -Uia. 889. 

Occupation is an essential element, and cannot be shown by inference: 
47 tin. 572. 

It is an occupied house it' the family live in it, although temporarily absent 
at the time : 48 Ga. 1 17. 

Possession of goods stolen from the burnt house, not proof of arson, but is a 
circumstance to be considered : 48 Ga. 117. 

The judge should have charged that the jury could recommend imprison- 
ment for life, irrespective of whether the conviction was founded on circum- 
stantial evidence or not: 47 Ga. 572; 48/119; 49/451. 

A f t o 1 ls,K §139. (4877a.) Burning unoccupied dwelling. The willful and 
malicious burning of an unoccupied dwelling-house of another, on 
a farm or plantation, or elsewhere, not in a city, shall be punished 
by imprisonment and labor in the penitentiary for not less than five 
nor longer than twenty years. 
Cobb, :i'". §140. (4378 ) Attempt to burn dwelling-house not in a city. Setting 
lire to the dwelling-house of another, with intent to burn the same, 
on a farm or plantation, or elsewhere, not in a city, town or village, 
shall be punished by imprisonment and labor in the penitentiary for 
not less than three years nor longer than seven years. 
\?t?i8784> §141- (4379.) Burning outhouse not in a city. The willful and 
pp.ci. 62. malicious burning of an outhouse of another, such as a barn, stable, 
gin-house, or any other house, except the dwelling-house, on a farm 
or plantation, or elsewhere, not in a city, town or village, shall be 
punished by imprisonment and labor in the penitentiary for not 
less than two years nor more than seven years. 

A country church is embraced in this section : 61 Ga. 66. 

Where persons combine to burn houses, and each sets fire to a house in exe- 
cution of a common purpose, all are principals : 52 Ga. 398. 

No material variance when the allegation is that the house belonged to and 
was in possession of M., and the proof showed her tenant held the actual pos- 
session : 67 Ga 639. 

When creating an opportunity to commit larceny seems to have been the 
motive, evidence of the lar6eny is admissible: 63 Ga. 395. 

When crimes are connected in time, place and purpose, there is some proba- 
bility that the perpetrator of one committed both : 63 Ga. 395. 

It may be shown that the tracks resemble those made by defendant's boots : 
63 Ga. 395. Opinion of witness as to tracks: 17 Ga. 130. 

Indebtedness of owners of cotton to owner of the gin-house, admitted to show 
motive: 58 Ga. 226. Feelings of defendant towards owner may be shown: 52 
Ga. 397. Evidence of declarations made by prisoner's relatives in his absence, 
admitted as part of a chain of connected events to show knowledge on his 
part: 63 Ga. 395. The jury are to weigh a threat with the other facts of the 
case ; in the light of all the circumstances: 58 Ga. 225. 

A confession without corroboration : 43 Ga. 256. 

With direct evidence of the burning, and circumstantial evidence from 
which the jury could infer that the fire was not accidental, the corpus delicti 
was established independently of the confession: 91 Ga. 11. Conviction on 
circumstantial evidence: 51 Ga. 614. This verdict supported: 89 Ga. 107. 



58 FIFTH DIVISION —ARTICLE 2. 88143-140 



Burglary. 



Indictment need not allege that the outhouse was not in a city, town or 
village. That affects the punishment only : 04 Ga. 605. 

§142. (4880.) Setting fire to an outhouse, punishment. Setting fire °° bb » 7fl0 * 
to an outhouse of another, as described in the preceding seel ion, shall 
be punished by imprisonment and labor in the penitentiary for 

not less than one year nor more than three yearn. 

§148. (4881.) Burning defined. The crime of burning shall k'Com- Cob, '- w '- 
plete where the house; is consumed or generally injured. 

§144. (4882.) Setting fire defined. The off ense of setting fire to a °° bb ' m 
house shall be complete when any attempt is made to burn it, though 
no material injury is the consequence. 

§145. (4888.) Burning railroad bridge. The willful or malicious Act | & 18ni - 
burning, or attempt to burn, any railroad bridge within this State, 
shall be deemed and adjudged arson, and shall be punished with 
death; but the punishment may be commuted in conformity with 
section 68 of this Code 

§146. (4884.) Arson in the day and night-time . Arson in the day- Cobb - 79 °- 

time (except in a city, town or village) shall be punished by a shorter 

period of imprisonment and labor than arson committed in the 

night . 

This is directory to the judge in the exercise of his discretion, and indictment- 
need not specify whether day or night : 41 Ga. 482. 

§147. (4885.) Arson causing death, punishment. Arson which pro- SSSVoJ?* 
duces the death of any person, shall be punished by the death of the p - 15 °- 
person committing the arson, but the punishment may be commuted 
in conformity with the provisions of section 68 of this Code. 

§148. Burning by person in possession of house. The fact that the Act ^ 88: - 
person burning or attempting to burn the house or outhouse of an- 
other, may be himself the occupant of such house or in possession of 
such outhouse, shall make the offense none the less arson or an at- 
tempt to commit arson, respectively: Provided, such occupancy or 
possession is as tenant of the owner, or as an intruder. 



ARTICLE 2. 

BURGLARY. 



§149. (4886.) Burglary defined. Burglary is the breaking ^d^eS^S* 
entering into the dwelling, mansion, or storehouse, or other place of Eg 141 - 
business of another, where valuable goods, wares, produce, or any 
other article of value are contained or stored, with intent to commit 
a felony or larceny. All outhouses contiguous to or within the cur- 
tilage or protection of the mansion or dwelling-house, shall be con- 
sidered as parts of the same. A hired room or apartment in a pub- 



§150 FIFTH DIVISION.— ARTICLE 2. 54 

Burglary. 



lie tavern, inn, or boarding-house, shall be considered as the dwelling- 
house of the person occupying- or hiring the same. 

$150. (4388.) Punishment. Burglary shall be punished by impris- 
p.65. onment in the penitentiary for not less than one year nor longer 
than twenty years. 

There is but one offense of burglary, and it is not necessary to specify whether 
it was committed in the day or night: 67 Ga. 739; 68/25. 

Opening a door not latched or fastened by bolts or locks, or breaking a pane 
of glass or hoisting a window, and effecting an entrance, is a breaking: 77 Ga. 
762. An entry by turning a bolt, not made for the purpose of lawful business, 
nor within business hours, is an entry by breaking: 84 Ga. 440. If blind shut- 
ters are prized open and the window raised, it is a breaking: 93 Ga. 186. This 
testimony leaves it uncertain whether the blinds were closed: 52 Ga. 580. 
Technically, to open a locked door with the owner's key, is breaking: 91 Ga. 
709. Opening a door by unlocking it is force in a legal sense: 92 Ga. 34, Break- 
ing or pushing aside a band : 94 Ga. 589. To enter through an open door 
without breaking, actual or constructive, and unbolt a door to get out, is not 
burglary : 51 Ga. 285. To break and enter with intent to steal is burglary , but to 
only enter with that intent is not : 46 Ga. 212. Although the outer door of the 
depot was open, it was burglary to break inner doors to apartments and enter 
them: 78 Ga. 98. If he broke and entered a storehouse with intent to steal, 
and was prevented when in the act of trying to open a drawer, it is burglary : 
76 Ga. 304. Proof that door was usually kept locked, admissible : 92 Ga. 33. 

Every house for the dwelling and habitation of man is taken to be a mansion 
house, wherein burglary may be committed: 4 Ga. 339. If the family was 
absent with the intention of returning, it was a dwelling-house : 74 Ga. 801. A 
gear-house that was within the protection of the dwelling-house : 60 Ga. 359. A 
room at a public inn, hired or occupied by a person, alone or with another, 
becomes his dwelling: 75 Ga. 825. Parol evidence of possession under a writ- 
ten lease, sufficient: 38 Ga. 165. When a corn-crib or barn is not within the 
section : 95 Ga. 459. 

Tlie words, "where valuable goods, etc., are contained and stored," apply to 
the words, "or other place of business of another," and not to the "dwelling, 
mansion or storehouse": 76 Ga. 304. The business carried on in the "place 
of business of another" nped not be of the kind carried on in a "storehouse" : 
48 Ga. 505 ; 77/763. If the goods were in fact contained or stored in the house 
at the time, it is sufficient: 48 Ga. 505. It is not necessary that the business 
done in the house be carried on in the goods stolen : 48 Ga. 505. An incomplete 
building, where carpenters deposit their tools, is a place of business within 
this section; 77 Ga. 762 If it be a mill-house, the indictment should allege 
that it is a place of business: 55 Ga. 562. An indictment for burglary in a 
theatre, which failed to allege that valuable goods were stored therein, was 
bad : 56 Ga. 477 The ownership of the house must be proved as laid, even when 
needlessly alleged : 92 Ga. 48. Where husband rented and lived with his family 
in the house, it was his dwelling-house and not the wife's: 63 Ga. 307 , 70/755; 
86/398. Where one in charge of a plantation slept in one room of the house, it 
was lu's dwelling-house, although another room was occasionally occupied -by the 
master: 68 Ga. 25. If husband and wife live together in her house, it is his 
dwelling as well as hers: 74 Ga. 802, 86/396. Sufficient if the alleged owner 
was in the lawful occupancy as tenant or otherwise: 38 Ga. 165. The owner- 
ship of the personalty mentioned in the indictment may be laid in a gratuitous 



55 FIFTH DIVISION —ARTICLE 2. L50 

Burglary. 

bailee: 89 (hi. 294 ; 84/258. That the owner was ";i corporation chartered by 
said State," was surplusage: 08 Ga. 822; 70/499. 

The indictment must allege the intent : 40 Ga. 322. It should specify the 

felony intended to be committed: 24 Ga. 420. That he broke and entered 
"with intent to steal" and took and carried away, money, etc., is sufficient : 58 
Ga. 80. The intent is shown by breaking and entering and taking away certain 
articles: 84 Ga. 258. No other motive appearing for an attempt at burglary 
at midnight, there being valuable goods in the house, the intent to steal may 
be inferred : 81 Ga. 736. His intention is ascertained from his acts and con- 
duct, and is a question for the jury: 54 Ga. 106. 

Not necessary to describe the goods, or to allege their value: 08 Ga. 836; 
76/304; 95/223. 

If one breaks in and another stands by and helps and receives the goods, both 
are guilty : 73 Ga. 799 ; 69/761. 

In order to prove that cotton baskets found at the scene of the burglary 
were similar to others found on defendant's premises, it was not necessary to 
produce them : 94 Ga. 589. 

There being some evidence to connect defendant with the burglary, the ver- 
dict stands : 91 Ga. 186. Clear and strong circumstantial evidence that accused 
made no effort to explain : 38 Ga. 585. Circumstances sufficient . 90 Ga. 778 ; 
56/545 ; 82/62 ; 92/461 ; 86/782, 804 ; 89/366. Not a strong case, but has the essen- 
tial elements : 89 Ga. 418. Insufficient circumstantial evidence : 46 Ga. 642. 
Defendant convicted almost solely oh tracks — he and some of his kindred made 
tracks in a box of sand before the jury : 80 Ga. 270. 

A verdict of receiving stolen goods should not be received : 87 Ga. 549. On 
a charge of burglary and larceny, a verdict of guilty convicts of burglary : 
86 Ga. 396. May be a conviction of larceny from the house under an indict- 
ment for burglary, if the larceny is sufficiently charged : 78 Ga. 347; 90/456; 
77/448. But not when the breaking is shown : 95 Ga. 223. 

The discretion of the judge as to the punishment, unless grossly abused, 
should not be interfered with : 56 Ga. 545. 



§§151, 152 SIXTH DIVISION.— ARTICLE 1. 56 



Robbery. 



SIXTH DIVISION. 



Crimes Relative to Property. 



ARTICLE 1. 



ROBBERY. 



Cobb. 791. §151 . (4389. ) Definition . Robbery is the wrongful, fraudulent and 
violent taking of money, goods or chattels from the person of an- 
other by force or intimidation, without the consent of the owner. 

There is but one offense of robbery and two grades of that offense — by 
force and by intimidation, and both grades may be charged in one count: 
12Ga.293; 87/516. 

Force is the ruling element: 12 Ga. 315. Violence, actual or constructive, 
precedes the taking, and distinguishes robbery from larceny : 12 Ga. 293. * 

If one against whom a crime has been committed, arrests the offender, and 
without any violence, receives money on an agreement not to prosecute, it is 
not robbery : 12 Ga. 294. If one who believes that property belongs to him, 
takes it from the possession of another by violence or menaces, it is not rob- 
bery : 12 Ga. 294. Nor, under a bona fide claim of right to apply to a debt: 
90 Ga. 701. 

The taking must be with the purpose to steal, and the robbery being proven. 
the intent is inferred from the appropriation of the property : 12 Ga. 294 ; 90/705. 

Res gestx of robbery at a hotel : 87 Ga. 516. 

Indictment must charge that the property was taken from the person of 
another: 39 Ga. 583. 

Counts for robbery and assault and battery cannot be joined: 57 Ga. 67. 
Nor, for robbery, larceny from the person, and cheating and swindling: 77 Ga. 
515. 

Verdicts supported: 83 Ga. 793; 90/315. 

Cobb, 791. §152. (4390.) By open force, punishment. Robbery by open force or 

A.CI© Io»Jo^ 

pp. 98, 99. violence shall be punished by imprisonment and labor in the peniten- 
tiary for not less than four years nor longer than twenty years. 

Force means actual violence: 12 Ga. 320. 

There must be force or intimidation, asportation without owner's consent, 
and intent to steal: 90 Ga. 701. 

Tf there is any injury done to the person, or if there is a struggle to retain 
possession, before the property is taken, it is the force of the law: 12 Ga. 294. 

Not necessary to prove that the property was actually taken from the person 
of the owner, but it is sufficient if it is taken in his presence: 84 Ga. 660, 
90/701 

A case illustrating the distinction between robbery and larceny from the 
person : 66 Ga. 168. 

If before a felonious taking the person makes resistance and the taking is 
ji^ainst his consent, it is robbery : 74 Ga. 372. 



57 SIXTH DIVISION.— ARTICLE 2. 158-156 

Larceny. 



To filch money from a person before his eyes, by artifice and trickery and 
without force, is not robbery : 77 (la. 513. 

A number of prisoners rob a jailor and all are guilty : 32 Ga. 858. 

The venue was in the county in which the captors reduced the money to 
their exclusive possession : 90 Ga. 315. 

§153. (4391.) By intimidation, punishment. Robbery by intimida- 22ftSi 
tion, or without using force and violence > 'shall be punished by Lin- ] '- K '- 
prisonment and labor in the penitentiary for not less than two 
years nor longer than twenty years. 

Intimidation means force, not actual and direct, but exerted upon the per- 
son robbed, by operating on the fears of injury to his person, or property, or 
character : 12 Ga. 314. 

Threats to prosecute for an unnatural crime, constitute constructive violence, 
whether the person be guilty or not. If threats to prosecute for any other 
crime are accompanied with force, actual or constructive, the offense is 
complete, whether the person be guilty or not : 12 Ga. 293 ; 71/100. 

Intimidation means putting in fear, as at common law : 12 Ga. 294. 

The taking must be against the will, and if the delivery seem to be volun- 
tary, but is from fear, it is robbery : 12 Ga. 294. If the circumstances be such 
as in common experience are likely to create apprehension of danger, and in- 
duce a man to part with his property, he is put in fear : 12 Ga. 294. Fear will 
be presumed when there is just ground for it : 12 Ga. 294. If the delivery be 
made whilst the fear continues, it is robbery : 12 Ga. 294. And the person 
robbed may prove that he was scared — it is a matter of his own consciousness: 
12 Ga. 294. 



ARTICLE 2. 

LARCENY. 






§154. (4392.) The several kinds of larceny. Larceny, or theft, as Cobb, nu 
contradistinguished from robbery by violence, force, or intimidation, 
shall consist of : 1. Simple theft or larceny. 2. Theft or larceny 
from the person. 3. Theft or larceny from the house. 4. Theft or 
larceny after a trust or confidence has been delegated or reposed. 

§155. (4393.) Simple larceny. Simple theft, or larceny, is the Cobb - W1 • 
wrongful and fraudulent taking and carrying away, by any person, 
of the personal goods of another, with intent to steal the same. The 
thief may be indicted in any county in which he may carry the goods 
stolen. 

The slightest moving of the goods from the place where left by the owner is 
sufficient proof of the asportation : 60 Ga. 143, 368* 

When one fraudulently gets possession of goods, which the party delivering 
did not intend to sell to him, and did not intend to have the title go to him, 
and he converted them to his own use, it is larceny : 81 Ga. 758. 

Taking under a fair claim of right is not larceny, and publicity of the tak- 
ing is powerful evidence of the bona fides of the claim : 79 Ga. 564. It is not 
larceny to take back goods sold under duress, nor where the sale was execu- 
tory . 78 Ga. 66. Here the title, in part, was in defendant: 85 Ga. 541. 



^ 156; 157 



SIXTH DIVISION.— ARTICLE 2. 



58 



Larceny. 



Cobb. 701. 



Cobb. 791. 



Larceny committed in a bouse may be simple larceny — bills lost therein may 
be stolon by the finder: S3 Ga. 369. 

The value must be alleged and proven: 40 Ga. 229; 55/221; 69/738; 95/460. 

The ownership must be alleged to be in some person; if the owner be 
unknown, that must be alleged : 25 Ga. 476. A special property coupled with 
lawful possession, sufficient to support allegation of ownership: 1 Ga. 563. 
Ownership may be laid in a gratuitous bailee: 89 Ga. 294. The allegation that 
it was the property of an estate was not sufficient: 25 Ga. 235. 

One who had agreed to participate in a crime may repent: 30 Ga. 757. 

Owner may furnish opportunity to intended thief and entrap him : 72 Ga. 
745. But he cannot solicit a party to commit an act, and then complain of it as 
a crime : 55 Ga. 395. 

Statements of the accused, pending and explanatory of possession, are ad- 
missible: 80 Ga. 255; 28/256; 30/872; 34/208. 

Witnesses may give such description of the bills as may be consistent with 
the truth and also with the indictment: 83 Ga. 369. 

When defendant set up that another might have committed the offense, the 
State, in reply, may prove the manner and conduct of such other person: 
33 Ga. 281. 

Flight was a circumstance that could be considered by the jury, unless shown 
to be from some other cause than from a sense of guilt, or was otherwise ex- 
plained: 76 Ga. 836; 20/156, 166; 26/276, 281; 63/170. 

Defendant in his statement failed to explain incriminating proof: 74 Ga. 394. 

A verdict of stealing cotton, supported: 91 Ga. 21. 

A fine of $50, or three months in the chain-gang, was very lenient against a 
chicken-thief: 74 Ga. 835. 

§156. (4394.) Horsestealing. Horse-stealing shall be denominated 
simple larceny, and the term ''horse" shall include mule and ass, 
and each animal of both sexes, and without regard to the altera- 
tions which may be made by artificial means. 

The horse, as used in this section, is a general term, which includes horse, as 
a species, mule and ass. Horse, as a species, may again be subdivided into 
stallion, ridgeling, gelding, and mare, and the same subdivision maybe made as 
to mule and ass: 86 Ga. 634. 

§157. (4395.) How charged and described. The offense shall, in all 
cases, be charged as simple larceny, but the indictment shall desig- 
nate the nature, character, and sex of the animal, and give some 
other description by which its identity may be ascertained. 

A thief who steals a horse in another State and brings it into this, is not 
guilty of larceny in this State: 64 Ga. 203. 

There was here a wrongful taking — the owner was deprived of possession: 
35 Ga. 247. 

The identity of the owner is a question for the jury: 68 Ga. 833. 

The allegation that the animal was a "chestnut-sorrel horse," was suffi- 
cient, on <i motion in arrest of judgment: 44 Ga. 263; 86/633. On special 
demurrer, the description "one dark bay horse with one white spot on the end 
of his nose and one small white spot in his forehead" was insufficient. The word 
"horse," which has both a generic and specific signification, was not sufficient 
to give defendant full notice of the "nature, character and sex" of the animal: 
86 Ga. 634. 

Admissible to show that defendant, when arrested, had other goods of the 
same owner, missed about the time the horse was stolen : 70 Ga. 721. 



59 SIXTH DIVISION.— ARTICLE 2. L5&-102 

Larceny. 



A l)ill of sale, to the horse, without showing its bona fide execution; is inad- 
missible: 44 Ga. 263. 

Possession and other circumstances sufficient here : 34 Ga. 288; 85 Ga. 369. 
Not sufficient: 45/531. Corpus delicti not established : 48'Ga. 329. 

§158. (4396.) Punishment. The stealing of ahorse shall be pBn-JJg*^- 
ished by confinement and labor in the penitentiary For not Less than *'■ 17 - 
four years nor longer than twenty yearn. 

§159. (4897.) Cattle-stealing. Cattle-stealing shall be denomi- Cobb, m 
nated simple larceny, and be so charged in the indictment, and 
shall include the theft of any horned animal, and all animals having 
the hoof cloven, except hogs. 

Killing not intending to steal, not cattle-stealing, although immediately 
afterwards the animus furandi enters his mind and he steals the carcass : 94 
Ga. 395. Shooting and taking possession of the cow in the woods, half way 
skinning the carcass and leaving it from fright, sufficient : 60 Ga. 143,368. 
"When the evidence tends to connect defendant with butchering the cow at a 
pen, his previous use of that pen is relevant : 58 Ga. 551. 

Explanation of defendant when the sheep were found in his pen, admitted : 
30 Ga, 872; 34/208. 

Open and public use of stolen property, and a truthful answer as to how 
some of it was disposed of, while prima facie evidence of innocence, may be 
intended to disguise guilt, and the jury may construe the conduct : 56 Ga. 630. 

A new trial will be more readily granted when the corpus delicti is not as 
fully established as might be expected — the owner did not testify: 56 Ga. 631. 

§160. (4398.) Indictment. The indictment shall sufficiently de- Cobb - 792 - 
scribe the animal falling under the description of cattle in the pre- 
ceding section, so that it may be ascertained and identified by the 
owner. 

The State must prove the description alleged, and it is proper to allow other 
proofs of identification than those alleged : 73 Ga, 128. A needlessly minute 
description must be proved as alleged, yet the superfluous elements need not 
be established with the same degree of certainty as is requisite touching 
the essentials of the case : 94 Ga, 395. " An animal of the female sex and of 
that species of animals known as cattle," sufficiently designates the species: 
94 Ga. 395. 

8161. (4399.) Punishment. The stealing of one or more animals Cobb, 79-2. 
falling under the above description of cattle, shall be punished by p. 17. 

. • . , , 1S95. p. 63. 

imprisonment in the penitentiary not less than two nor longer than 
four years. 

§162. (4400.) Hog-stealing. The stealing of a hog is simple lar- Cobb - 79 * 2 - 
ceny, and shall be so charged in the indictment, and the hog so 
described that it may be identified by the owner. 

It is incumbent on the State to prove that, in fact, the hog was stolen : 
74 Ga. 840. 

If defendant's claim to the hog was a real, and not a pretended one, he was 
not guilty. If his claim was for another, that is afact, which is almost insuper- 



|§163-166 SIXTH DIVISION.— ARTICLE 2. 60 



Larceny 



able, to show that it was real: 29 Ga. 76. Aiding in butchering the hog, not 
knowing it was stolen, not sufficient : 32 Ga. 424. 

The description of a thing is one of degree. Certainty to a reasonable intent 
is all the law requires: 44 Ga. 300. It is sufficient if it be such as that the 
owner may identify the animal: 57 Ga. 2S ; 64/443. Sex not required to be 
stated : 44 Ga. 300. Value should be : 40 Ga, 229. 

When the hog is described as black-spotted and weighing twenty-five pounds, 
and proven to be of that weight and having black spots, though sandy-colored 
generally, it is sufficient: 64 Ga. 443. A charge of stealing a white barrow hog 
with a crop and underbit in each ear, is not supported by proof of a white 
barrow hog with a crop in each ear : 74 Ga, 840. And the variance in this case 
was material: 64 Ga. 449. And in this: 95 Ga. 463. 

Sayings of accused accompanying possession are admissible for him : 28 
Ga. 256. Incriminating circumstances here, and no satisfactory explanation of 
them : 62 Ga. 337. That the hog w r as heard to squeal, witness ran to it, defend- 
ant ran away from it, and the hog was dead, being knocked in the head, was 
sufficient : 64 Ga. 443. Admissible to prove that the sow was killed to prevent 
her from recognizing the stolen pigs: 74 Ga, 396. The hog some of whose 
remains Avere buried in prisoner's garden, and the stolen hog, were sufficiently 
identified: 77 Ga. 310. 

Hogs belonging to different persons, stolen at the same time and place, and 
so charged, but one offense. That defendant stole one of them, sufficient : 
57 Ga. 171. 

That the owner hunted for it as a stolen hog, admissible : 77 Ga. 310. That 
prosecutor accused another person of stealing different hogs, inadmissible: 
74 Ga. 396. 

Venue proven sufficiently : 66 Ga. 754. This verdict supported : 80 Ga. 772. 
But not this : 24 Ga, 428. 

Actsi875 2 ' §163. (4401.) Punishment. The punishment of hog-stealing shall 
p- 26 - be as prescribed in section 161 for the offense of cattle-stealing. 

Cobb, 792. §164. (4402.) Other animals. All other domestic animals which 
are fit for food, and also a dog, may be subjects of simple larceny; 
and any person who shall steal any such animal shall be guilty of a 
misdemeanor. 

A dog is the subject of larceny : 75 Ga. 445. 

Cobb, 792. §165. (4403.) Altering brands or marks. If any person shall mark 
and brand, or mark or brand, any animal before mentioned, or alter 
or change the mark or brand of any such animal, being the property 
of another, with an intention to claim or appropriate the same to 
his own use, or to prevent identification by the true owner thereof, 
he shall suffer the same punishment as is inflicted for the theft of 
said animal. 



Cobb. 792. 
798. 



The evidence in this case did not authorize a conviction : 24 Ga. 427. 

§166. (4405.) Larceny of deeds or papers, and punishment. If any 
person shall take; and carry away any paper, document, deed, will, 
or other writing relating to real or personal estate, with an intention 
to impair, prevent, or render difficult the establishment of a title to 



61 SIXTH DIVISION.— ARTICLE 2. L67-171 

Larceny. 



real or personal estate, or mutilate, cancel, burn, or otherwise de 
stroy said paper, document, deed, will, or oilier writing, with the 
intention aforesaid, lie shall be guilty of simple larceny, and be 
punished by imprisonment and labor in the penitentiary for noi less 
than one year nor longer than three years. 

§167. (4406.) Larceny of bonds, etc. If any person shall take and JjJ} 1 
carry away any bond, note, bank-bill, due-bill, or paper or papers p* 84, 
securing the payment of money or other valuable thing, or any re- 
ceipt, acquittance, or paper or papers operating as a discharge for 
the payment of money or other things, belonging to another, with 
intent to steal the same, he shall be guilty of simple larceny, and 
be punished by imprisonment and labor in the penitentiary for not 
less than one year, nor longer than four years, when the property is 
of the value of fifty dollars or more ; and when the property stolen 
is under the value of- fifty dollars, he shall be guilty of a mis- 
demeanor. 

As to this section prior to the amending Act : 86 Ga. 399. If the notes were 
taken from the person, there could not be a conviction under this section : 
54 Ga. 184. 

§168. Larceny of election returns. Any person who shall take, Ast ^ M> 
carry away, or destroy any election returns or paper connected with 
the holding of elections in this State, with intent to steal the same 
or to prevent a proper return of such election, shall be guilty of a 
misdemeanor. 

§169. (4407.) Things savoring of the realty, and fixtures. Theft or JjjjJJ^Ej 
larceny may be committed of anything which, in the language of p- 233 - 
the law, savors of the realty, or of any fixture; and the punish- 
ment shall be as for a misdemeanor. 

§170. (2220.) Detached becomes personalty. Anything detached 
from the realty becomes personalty instantly on being so detached, 
and may be the subject-matter of larceny, even by the person wrong- 
fully detaching it. 

Cited, where ears of corn were taken from a field : 68 Ga. 820. 

The difference between simple larceny and one form of trespass is, that the 
former is the wrongful and fraudulent taking and carrying away with intent 
to steal, and the latter is the taking and carrying away without the owner's 
consent: 68 Ga. 820. They are not of the same genus, and one indicted for 
trespass cannot be convicted, if the testimony shows he is guilty of simple 
larceny: 71 Ga. 361. 

§171. (4488.) Receiving stolen goods. If any person shall buy or re- c ^ b ' 807 ' 
ceive any goods, chattels, money, or other effects, that shall have been 
stolen or feloniously taken from another, knowing the same to be 
stolen or feloniously taken, such person shall be an accessory after 
the fact, and shall receive the same punishment as would be inflicted 
on the person convicted of having stolen or feloniously taken the 
property. 



gl72 SIXTH DIVISION.— ARTICLE 2. 62 



Larceny 



This section creates and defines a distinct offense. The term "feloniously 

taken " is used to show the intent with which the goods were taken from the 
owner, and not to indicate that defendant was guilty of a felony: 45 Ga. 569; 
75/256. 

The gist of the offense is the felonious knowledge that the goods were stolen : 
55/Ga. L91. 

All the incidents that attach to the offense of an accessory after the fact, 
attach to this crime, and the same pleadings and proof are required to con- 
vict : 4 Ga. 469; 75/253. 

If one receives stolen goods from an infant incapable of committing crime, 
lie is guilty as a principal : 80 Ga. 127. 

The ownership and larceny of the goods must be proven as charged : 55 
Ga. 296. 

The indictment should specify the particular offense of which the principal 
thief was convicted : 56 Ga. 92. And when he is only charged with simple lar- 
ceny, the evidence should be confined to that, and an indictment for burglary 
and a plea of guilty thereon should not be admitted: 56 Ga. 92. 

The name of the principal, if known, must be alleged, and proved, but if un- 
known that must be alleged, when proof of the theft by any person will suffice : 

75 Ga. 253; 4/465. The trial and conviction of the principal must be alleged. 
If the principal cannot be taken, the indictment should be under section 172: 
56 Ga. 92; 57/610. 

It must be shown that the principal, whether taken or not, whether known 
or unknown, is guilty : 80 Ga. 129. The record of the conviction of the princi- 
pal on a plea of guilty, is conclusive evidence of conviction, and only prima facie 
evidence of the principal's guilt: 63 Ga. 675. That the principal was acquitted 
on the ground that he was under ten years of age would not excuse the State 
from producing a record of the conviction of that person as a principal thief : 
80 Ga. 127. Parol evidence of conviction of the principal, sufficient if not ob- 
jected to : 95 Ga. 479. 

The guilty knowledge may, in most cases, be inferred from facts and circum- 
stances in proof: 75 Ga. 253. Such as the character of the person from whom 
the goods were received, the kind of goods, and the hours when received: 

76 Ga. 664; 78/802. 

Books containing entries of car numbers, admitted to identify stolen brasses : 
91 Ga. 167. 

The principal thief was convicted of stealing unginned cotton — a misde- 
meanor; it was baled, and defendant received it — a felony. The city court 
had no jurisdiction: 84 Ga. 7. 

A count for this offense may be joined with one for simple larceny: 61 Ga. 
213. A good indictment: 75 Ga. 253. 

The venue is sufficiently laid and proved when it is shown that defendant re- 
ceived the goods in the county of the trial; not material to allege that the 
breaking and stealing occurred in that county: 75 Ga. 253. 

The words "shall receive and suffer the same punishment" as the principal, 
may mean that the sentence of the principal shall be the measure of that im- 
posed upon the accessory ; but the better construction probably is, that the 
latter shallnot exceed the maximum of what the former might have been: 
63 Ga. 678. The accessory is liable to the same punishment, whether he is 
apprised of the intent and circumstances with which they were originally 
taken or not : 75 Ga. 253. 

Cobb,* 8. §172. (4489.) If principal cannot betaken. If the principal thief 
cannot be taken, so an to be proBecuted and convicted, the person 



68 SIXTH DIVISION.— ARTICLE 2. 178-176 

La rceny. 



buying or receiving any goods, chattels, money, or effects, stoleD or 
feloniously taken by such principal thief, knowing the same to be 
stolen or feloniously taken, shall be punished as prescribed in the 
preceding section; and a conviction under this section shall be a bar 
to any prosecution tinder the preceding section. 

§178. (4408.) Plundering or stealing from wrecked vessels. Plunder-' 
ing or stealing any article of value from a vessel in distress, or from ?•*• 
a wreck, or any other vessel, boat or water-craft, within the juris- 
dictional limits of this State, is simple larceny, and shall be pun- 
ished as a misdemeanor when any article so taken is under fifty 
dollars in value, and when of more than the value of fifty dollars, 
by imprisonment and labor in the penitentiary for not less than 
one year nor longer than five. 

The offense is complete if a box of shoes is broken open, the shoes taken out 
of it and concealed in" the vessel, though not carried out of the vessel : 
60 Ga. 264. 

The goods were, immediately after the larceny, found in defendant's posses- 
sion, which was presumptive evidence of guilt: 57 Ga. 503. 

§174. (4409.) Other larcenies. All simple larcenies of the personal 
goods of another, not mentioned or particularly designated in this 
Code, shall be punished as misdemeanors. 

§175. (4410.) Larceny from the person defined. Theft or larceny Co1 
from the person, as distinguished from robbery, is the wrongful and 
fraudulent taking of money, goods, chattels, or effects, or any article 
of value, from the person of another, privately, without his knowledge, 
in any place whatever, with intent to steal the same. 

§176. (4411.) Punishment. The punishment for larceny from the ^Stsxsraiii 
person shall be as for a misdemeanor, except in those cases where p - 5 
the money, or thing stolen, exceeds in value fifty dollars ; then the 
punishment shall be imprisonment in the penitentiary for not less 
than two years nor more than five years. 

The article must be taken from the person of another privately and without 
his knowledge : 65 Ga. 754. 

If there be force or intimidation in the act, it is robbery. Where a thief 
slipped his hand into a lady's pocket and got his finger caught in extricating 
it, and the pocket was torn, it was this offense : 66 Ga. 167. 

A guardian has a special property in money in his hands, and in the indict- 
ment it may be laid as his property : 22 Ga. 499. 

Bank-notes are the subject of larceny from the person: 22 Ga. 499. Xot 
essential that the bills should be accurately and minutely described and iden- 
tified, but the jury must be satisfied that the bills were on the person of the 
loser, and that defendant, by himself or a confederate, was the guilty party : 
66 Ga. 591. After verdict it is too late to object to the description, "United 
States promissory or bank-notes of the value of seventy dollars" : 41 Ga. 589. 

"One watch and chain of the value of seventy-five dollars." is sufficiently 
specific : 88 Ga. 32. 



56. 



§§177-170 SIXTH DIVISION.— ARTICLE 2. 64 



Larceny. 



Proof o\' prisoner's paying the amount stolon to the loser's attorney, 
admissible: 66 Ga. 591. Conspiracy of pickpockets here: 66 Ga. 591. 

One charged as principal, cannot be convicted as accessory after the fact: 
52 Ga. 287. This cannot be joined with robbery: 77 Ga. 513. 

The jury determine the value o\' the property: 66 Ga. 690. 

And the proof should show its value: 88 Ga. 32. 

This proof not sufficient : 51 Ga. 301. 

.to*. §177. (4412.) What secret , sudden taking shall be larceny. Any sort 
of secret, sudden, or wrongful taking from the person with the intent 
to steal, without using intimidation, or open force and violence, shall 
l>e within this class of larceny, though some small force be used by 
the thief to possess himself of the property: Provided, there be no 
resistance by the owner, or injury to his person, and all the circum- 
stances of the case show that the thing was taken, not so much 
against as without the consent of the owner. 
■~^- §178. (4418.) Larceny from the house. Larceny from the house 
is the breaking or entering any house with the intent to steal, or 
after breaking or entering said house, stealing therefrom anything 
of value. 
Cobb. 794. §179. (4414.) Punishment. Any person who shall in any dwelling- 
house, store, shop, warehouse, or any other building, privately steal 
any money, or any other thing, under the value of fifty dollars, shall 
be punished as for a misdemeanor; if the value of the money or thing 
thus stolen be fifty dollars or more, he shall be punished by im- 
prisonment and labor in the penitentiary for not less than one nor 
longer than ten years. 

This is not an offense against the habitation, but is an offense against the 
property as contradistinguished from the building, and refers to other houses 
than those wherein burglary is the offense: 46 Ga. 217; 73/615; 76/306; 95/459. 

It may be committed in any house : 50 Ga. 258 ; 73/615 ; 58/432. No sub- 
stantial variance between "storehouse" and warehouse : 95 Ga. 479. 

The property must be in a house and be taken therefrom : 53 Ga. 248. The 
offense was complete if a watch which was hanging on a post covered by the 
roof of the building, was stolen : 62 Ga. 170. 

Under this section, not necessary to show how the thief entered : 66 Ga. 194. 
Nor, with intent to steal: 10 Ga. 511. 

Neither the ownership of the property stolen, nor its custody by the occu- 
pants of the building, nor the presence or absence of the owner, is an essential 
ingredient: 76 Ga. 615. Stealing from a satchel on a bank counter is larceny 
from the house, although the satchel was not in the custody of, and did not 
belong to the occupiers of the building: 73 Ga. 609. 

There must be proof of ownership and value: 95 Ga. 458. 

Possession and occupancy of a house, sufficient evidence of ownership : 25 Ga. 
52. Ownership may be laid in a name assumed by a corporation and recognized 
by defendant, it s employee: 93 Ga. 165. That the goods alleged to belong to 
prosecutor belonged to a firm, was immaterial, as he had the custody of them: 
70 Ga. 752. 

It must appear that the goods disappeared by stealing, rather than by sale, 
from the store: 86 Ga. 90. 



65 SIXTH DIVISION.— ARTICLE 2. 180-188 

Larceny. 

Stealing a trunk with money in it, was stealing the money : 10 Ga, 512. The 
intent to steal may be inferred if the property is taken without the knowledge 
and consent of the owner and afterwards appropriated to defendant's use! 

76 Ga. 29. Defendant's participation shown: HI 0a. 748. 

Possession of stolen property not satisfactorily explained : 91 Ga. 7; 62/179. 
Defendant in his statement did not deny incriminating evidence : 73 Ga. 574. 

If one who is employed for wages as a servant at a gin-house, hut who has 
not the* cotton in his possession and is not the bailee of it, steals it, it is 
within this section : 75 Ga. 474. 

"Two thousand dollars in gold and silver coin of the value of two thousand 
dollars," is a sufficient description of the offense: 10 Ga. 51 1. "Thirty dollars 
in money of the value of thirty dollars" is sufficient of the kind of money: 
68 Ga. 836. 

The charge of stealing two dollars in lawful currency of the United States, 
is supported by proof of two silver dollars : 76 Ga. 18. The charge of stealing 
a grindstone from a wagon-shed house not supported by proof of stealing it 
from under a buggy-shed house : 92 Ga. 448. 

Statements of accused to the owner, in an effort to prevent him from testi- 
fying as to tracks, admissible: 76 Ga. 786. 

If the value be under fifty dollars, no corroboration of accomplice needed: 
75 Ga. 474. One held to be guilty as an accomplice : 89 Ga. 291. 

Indictments held to be good : 33 Ga. 98 ; 70/719. An indictment which 
omitted the word "privately," was held, after verdict, to be good : 60 Ga. 431. 
That the indictment was found within the statutory period, was shown by cir- 
cumstances : 76 Ga. 808. 

Under an indictment for this offense there may be a conviction for simple 
larceny : 90 Ga, 454 ; 76/815. 

If the accusation and facts make burglary and also this offense, there may 
be a conviction for the larceny : 77 Ga. 448 ; 60/88 ; 78/347. A breaking and en- 
tering so as to make burglary, not shown here: 69 Ga. 771. 

If the goods are over fifty dollars in value, it is a felony ; other forms of the 
offense are misdemeanors : 50 Ga. 258. If the value be alleged at over $50, a 
general verdict of guilty is sufficient. If the proven value be under $50, the 
jury return the fact specially, or find a verdict of not guilty : 60 Ga, 431. This 
evidence sufficient as to value : 55 Ga, 221. 

§180. (4415.) Punishment for enterinq house with intent to steal. Cobb. 794 

o \ / J V Acts 1865-6, 

Any person entering a dwelling-house, store, shop, or warehouse, or p- 33 - 
any other house or building, with intent to steal, but who is detected 
and prevented from so doing, shall be guilty of a misdemeanor. 

One is not guilty if, after breaking or entering with intent to steal, he of 
his own motion change that intent : 46 Ga. 215. 

§181. (4416.) Breaking with such intent. Any person breaking any Cobb. 795. 
dwelling-house, store, shop, or warehouse, or any other house or 
building, with intent to steal, but who is detected and prevented 
from effecting such intention, shall be guilty of a misdemeanor. 

§182. (4417.) Breaking and entering and stealing. Any person Cobb " 7?5 - 
breaking and entering any house or building (other than a dwell- 
ing-house or its appurtenances) with intent to steal, but who is de- 
tected and prevented from carrying such intention into effect; and 
any person breaking or entering any such house or building, and 
5 



Cobb, 795. 



18&-186 SIXTH DIVISION.— ARTICLE 2. 66 

Larceny. 

stealing therefrom any money, goods, chattels, wares, or merchan- 
dise, or any other thing or article of value, shall be guilty of a mis- 
demeanor. 

§183. (4418.) Public buildings included. Any house, building, or 
edifice, belonging to the State or a corporate body, or appropriated 
to public worship, or any other public purpose, shall be taken and 
considered as a house or building within which this class of larceny 
may be committed. 

'p 01 ^ 882 3 * §184- Breaking and entering car with intent to steal, or stealing there- 
from. Any person who shall break and enter any railroad-car with 
intent to steal any goods, wares, freight, or other thing of value 
being therein, or who shall, after breaking, steal therefrom any 
goods, freight or other thing of value being therein, shall be pun- 
ished by confinement in the penitentiary for not less than one nor 
more than five years. 

The indictment must allege the ownership of the car : 89 Ga. 222. 

The evidence as to the breaking of the car was incomplete : 93 Ga. 310. 

On the trial of one of several, who were jointly indicted for breaking and 
entering a car, it may be shown that the class of goods missed from several 
cars that were plundered at the same place and near the same time, were 
found in possession of each of the defendants : 73 Ga. 595. 

The State is not confined to the day named in the indictment : 73 Ga. 595. 

Cobb.795 §185. (4419.) Entering and stealing from hut, car, etc. Any person 
p. 139. entering and stealing from any hut, railroad-car, tent, booth, or 
temporary building, shall be guilty of a misdemeanor. 

The evidence does not show that the car was broken open and the case 
comes within this section. Corn was stolen from the car, and defendant was 
arrested on the street with some of it in his possession : 81 Ga. 742. 

The indictment charged the car was in the possession and control of the 
" Central Railroad and Banking Co., a corporation duly chartered under the 
laws of Georgia," and the proof showed it was in the possession of "The 
Central Railroad and Banking Co., of Georgia," and that the corporation was 
as well known by one name as the other — the identity of the party appeared : 
90 Ga. 463. 

Aet i 9 5o 880 " 1, §186- (4419a.) Stealing baled cotton. If any person shall take, 
steal, and carry away a bale of cotton from any place where the 
same may be stored, whether the same shall be in a house, or within 
the curtilage, or not, such person shall be punished by imprison- 
ment in the penitentiary not less than one year and not longer than 
five years. 

" Any place where the same may be stored " means any place where it may 
have been placed or located: 74 Ga. 404; 84/8. The intention of this section 
was merely to make it a felony instead of a misdemeanor: 74 Ga. 404. 

That the first initial of owner was I., instead of J., immaterial if proof 
shows ownership in proper person : 76 Ga. 613. 

Possessory warrant proceedings and judgment in favor of defendant, inad- 
missible: 69 Ga. 737. 



67 SIXTH DIVISION.— ARTICLE 8. 187-189 



Embezzlement and fraudulent conversions 



ARTICLE 8. 

EMBEZZLEMENT AND FRAUDULENT CONVERSIONS. 

§187. (4421.) Embezzlement by public officers, agents, etc. Any officer, o©bb#wfc 

servant, or other person, employed in any public department, station, 
or office of government of this State, or any county, town or city 
thereof, who shall embezzle, steal, secrete, or fraudulently take and 
carry away any money, paper, book, or other property or effects, shall 
be punished by imprisonment and labor in the penitentiary for not 
less than two years nor longer than seven years. 

The indictment should charge defendant to be an officer, or person employed 
in a public department, station or office of government in this State : 50 Ga. 314. 
This sufficiently averred the possession of the money : 83 Ga. 166. 

If the tax-collector used the money he had collected, in any way whatever 
for his own profit, he was guilty : 73 Ga. 408. 

Transcripts from the books of the treasurer and comptroller-general are ad- 
missible on the trial of the collector: 53 Ga. 152. That the officer has reim- 
bursed his sureties who paid the State, does not purge the crime: 83 Ga. 167. 
An ordinary who is guilty of this offense may be convicted as accessory before 
the fact of larceny of county property in his charge : 76 Ga. 808. 

Unless it affirmatively appears to the contrary, the embezzlement is to be 
taken as committed in the county of which the accused is an officer : 83 Ga. 167. 

§188. (4421.) Embezzlement by bank or other corporate officers, serv- Oobb, 795. 

ants or stockholders. Any officer, servant, or other person employed 

in any department, station or office in any bank or other corporate 

body in this State, or any president, director or stockholder, of any 

bank or other corporate body in this State, who shall embezzle, steal, 

secrete, or fraudulently take and carry away any money, paper, book, 

or other property or effects, shall be punished by imprisonment and 

labor in the penitentiary for not less than two years nor longer than' 

seven years. 

A company incorporated by Act of Congress, and located at Washington 
city, not within this section: 55 Ga. 237. 

A description of bank-bills by amounts, value, by what bank issued, and by 
whom signed, is sufficient without numbers and dates : 10 Ga. 47. This indict- 
ment was sufficient : 76 Ga. 551. 

Where, in one count, various acts which go to make up the offense are 
charged, the State is not compelled to prove separately each act, nor to elect 
on which of the acts it will try : 76 Ga. 552. 

Making false entries to conceal the conversion is a circumstance to show fraud- 
ulent intent, and proof may be made of facts not charged to show intent : 76 
Ga. 552. Evidence to show defendant was in straightened circumstances, and 
there was a necessity upon him for large sums of money, admissible : 10 Ga. 47. 

§189. (4435.) Embezzling of county money . Any county treasurer ^Ssiae!" 
of any county in this State, who shall divert, misapply, embezzle or p - 40 - 
conceal any money belonging to the county of which he is such 
county treasurer, with intent to appropriate the same to his own use, 
shall be punished by imprisonment in the penitentiary for not 



88190, 191 SIXTH DIVISION.— ARTICLE 8. (58 

Embezzlement and fraudulent conversions, 

loss than two nor longer than twenty years, and shall moreover be 
removed from office. On the trial of such defendant, proof of his 
having failed or refused to make an exhibit to the grand jury of 
the county o( which he is such treasurer, at the superior court first- 
held in each year in said county (unless prevented by providential 
cause), a full and complete statement of the county's funds, as 
required by law, received by him during the preceding year, shall be 
deemed prima fade evidence of guilt, and throw the burden of proof 
on him. The prosecuting officer shall not be required to identify 
the money, coin or bank-bills, or other property misapplied, embez- 
zled or concealed, but an allegation that any sum of money or 
evidence of debt has been received by the defendant belonging to the 
county, and that he fails or refuses to account for the same, if 
proved, shall authorize a conviction, unless the defendant shall set 
up and sustain a valid and legal defense to the charge. 

Act ui 889 ' §190- Penalty for trustee who converts to his own use assets of an 
estate. If any executor, administrator, guardian or trustee shall 
fraudulently and willfully convert to his own use any money, or any 
other thing of value, which may come into his hands as such execu- 
tor, administrator, guardian or trustee, or shall, in a like manner, 
convert to his own use the proceeds of the whole or any part thereof, 
and to the injury of those entitled to the same, or the proceeds 
thereof, and without paying to the person entitled thereto, on de- 
mand legally made in writing, the full value or market price thereof, 
he shall be deemed guilty of embezzlement, and shall be punished 
by imprisonment and labor in the penitentiary for not less than 
two nor longer than seven years. 

Cobb, 796. §191. (4422.) Any bailee fraudulently converting the goods or proceeds. 
If any factor, commission merchant, warehouse-keeper, wharfinger, 
w r agoner, stage driver, or common carrier on land or water, or any 
other bailee, with whom any money, or any other thing of value, 
may be intrusted or deposited, shall fraudulently convert the same, 
or any part thereof, to his own use, or shall otherwise dispose of the 
same, or any part thereof, without the consent of the owner or bailor, 
and to his injury, and without paying to such owner or bailor, 
on demand, the full value or market price thereof, he shall be pun- 
ished by imprisonment and labor in the penitentiary for not less 
than two years nor longer than seven years. 

Any other bailee means any other like bailee : 86 Ga. 718. 

The section embraces a fraudulent conversion of the article, and a dispo- 
sition of it otherwise to the injury, and without the consent, of the owner, and 
without paying him its full value and market price on demand : 15 Ga. 208 ; 
71/267. 

When the indictment charges a fraudulent conversion, it need not charge 
that it was done without the owner's or bailor's consent and to his injury, and 
without paying the value on demand : 57 Ga. 367 ; 50/219. 



69 SIXTH DIVISION.— ARTICLE fc 92-194 



Embezzlement and fraudulent convergioni. 



A fraudulent conversion is a deception deliberately practiced in order to 
gain an undue and unfair advantage: 78 Ga. 840. To make out a caeefrom the 
mere use of the article, it must appear that the use was fraudulent; under 
such circumstances as to show an intent to deprive the owner of hifl property: 
50 Ga. 219; 75/324. Defendant was intrusted with a mule with a view of buy- 
ing it if he liked it, and lie fraudulently converted it: 1'.', Ga. 812. 

Money was intrusted to defendant to make change, arid fche I rusi included, 
by implication, an undertaking to return the same money if not used in mak- 
ing change : 79 Ga. 584. 

No officer of the State, by intrusting another with the money of the State, 
can make such person a bailee or fiduciary of the State, within the intent of 
this or section 194: 50 Ga. 314. 

An indictment charging the disposition of the property in the alternative, i- 
not good on special demurrer : 86 Ga. 717. 

The character or capacity in which defendant was intrusted, should be 
alleged : 86 Ga. 717. 

The venue as to a railroad ticket : 71 Ga. 267. 

§192. (4422.) Conversion of proceeds oj^sale. If any bailee, w ith Cobb - ™- 
whom any money or other thing of value may be intrusted or de- 
posited, shall, after a sale of any of said articles with the consent 
of the owner or bailor, fraudulently, and without the consent of the 
owner or bailor, convert the proceeds or any part thereof to his own 
use, and fail or refuse to pay the same over to such owner or bailor 
on demand, he shall be punished by imprisonment and labor in the 
penitentiary for not less than two years nor longer than seven years. 

§193. (4423.) Clerks, agents, etc., fraudulently taking and convert- obb ' ,96 * 
ing goods intrusted to them. If any person, employed in any capac- 
ity, in any store, or other place of trade, or exchange, where, from 
the nature of the business or employment, it is necessary or usual 
to intrust to such person any goods, or any other article of value, 
shall fraudulently take and carry away, or convert to his own use, 
or otherwise dispose of any of the said goods, or other thing of 
value, thus intrusted to him, or committed to his charge, to the 
injury and without the consent of the owner thereof, or person thus 
intrusting him, he shall be punished by imprisonment and labor 
in the penitentiary for not less than one year nor longer than 
five years. 

§194. (4424.) Any other person so offending. If any person who$ct?is^' 
has been intrusted by another with any money, note, bill of ex- p ' 232 ' 
change, bond, check, draft, order for the payment of money, cotton 
or other produce, or any other article or thing of value, for the pur- 
pose of applying the same for the use or benefit of the owner or 
person delivering it, shall fraudulently convert the same to his own 
use, he shall be punished by imprisonment and labor in the peniten- 
tiary for not less than one year nor longer than five years. 

The character of the bailment — the purpose for which the thing is intrusted, 
and a proper description of the thing or article, should be set forth in the 
indictment: 53 Ga. 326 ; 86/720 ; 88/500. The trust charged must be proved: 



g| 196-197 SIXTH DIVISION.— ARTICLE 4. 70 

The State's property or money, 

88 Ga. 500; 95/465. It must be shown that defendant was intrusted with the 
money by the bailor named in the indictment: 81 Ga. 334; 88/500. 

If the indictment needlessly alleges that the money was lawful currency of 
the United States, it must be proved: 64 Ga. 61. 

Oobb,TO. §195. (44:24.) Conversion, when intrusted for collection. If any per- 
son who has been intrusted by another with any note, bill of ex- 
change, bond, check, draft, or order for the payment of money, for 
the purpose of collecting money or other thing due thereon and 
paying the proceeds over to the owner or other person so delivering 
the same, shall fraudulently convert the same or the proceeds of 
any part thereof to his own use, or shall otherwise dispose of the 
same, to the injury and without the consent of the owner or other 
person intrusting or delivering it, and without paying to such owner 
or person the full value or market price thereof, ' he shall be pun- 
ished by imprisonment and labor in the penitentiary for not less 
than one year nor longer than five years. 

Cobb, t^- §196. (4424.) Conversion when intrusted for selling. If any person 
who has been intrusted by another with any cotton or other pro- 
duce, or any goods, animal, or other article of value, for the purpose 
of selling the same and paying the proceeds of such sale to the 
owner or other person so intrusting or delivering the article, shall 
fraudulently convert the same, or any part thereof, or the proceeds 
of any part thereof, to his own use, or shall otherwise dispose of the 
same to the injury and without the consent of the owner or other 
person so intrusting or delivering it, and without paying to such 
owner or person the full value or market price thereof, he shall be 
punished by imprisonment and labor in the penitentiary for not less 
than one year nor longer than five years. 




ARTICLE 4. 

THE STATE'S PROPERTY OR MONEY. 

Actsmi-2, §197. (4425.) Withholding the State's money or property. If any 
person shall fraudulently, wrongfully, or illegally receive any money 
or personal property belonging to the State of Georgia, and shall 
refuse to pay over said money, or deliver up said personal property 
to the treasurer of the State, or his authorized agent, upon a de- 
mand of the same, by such treasurer, or his agent; or if any per- 
son shall lawfully receive money or personal property belonging to 
the State of Georgia, as an officer of said State, or otherwise, and 
shall, after demand upon him by said treasurer, or authorized agent, 

a fail to pay said money, or deliver said personal property to said 

treasurer, or his authorized agent, the same being still the property 



71 SIXTH DIVISION.— ARTICLE 4. L98-202 



The State's property or money. 



of the State, within ten days after such demand, be shall be pun- 
ished by confinement and labor in the penitentiary no1 less than 

one nor more than two years. 

Indictment should charge that the accused fraudulently, wrongfully, or Ille- 
gally received the money, or that, having lawfully received the same, he tailed 

to pay within ten days after a demand : 50 Ga. 314. 

§198. (4425 a.) Penalty for using State money. If the State tn-;i-- ( : 
urer, or any other officer of this State, shall use, directly or indi-^JfJna*, 
rectly, the money of this State, he shall be punished by imprison- l> -''' 2 - 
ment in the penitentiary for not less than five nor longer than 
twenty years. 

§199. (4425b.) Receiving interest on public money prohibited. If '^ffij? 
the State treasurer, or any other officer of the State, or county, or 
any other person, shall receive, or agree to receive, from any person, 
bank, or corporation, any fee, interest or reward for the deposit or 
use of money of the State, such officer, or other person, shall be 
punished by imprisonment in the penitentiary for not less than five 
nor longer than twenty years. But nothing in this or the preceding 
section shall be construed to modify or change any law relative to 
the conduct or liability of the treasurer or any officer of the State. 

§200. (4435 a, 5194.) Receiving interest on public funds. The re- c ™ t S ;-; sec . 
ceiving, directly or indirectly, by any officer of the State, or county, ^yjimw, 
or member or officer of the General Assembly, of any interest, profits, p - m - 
or perquisites arising from the use or loan of public funds in his 
hands, or moneys to be raised^ through his agency for State or 
county purposes, shall be punished by imprisonment in the peniten- 
tiary for not less than two years nor longer than seven years, and 
such offender shall be disqualified from holding office. 

§201. (943b.) Officer receiving reivard for depositing State's money Aets 2f J 2: 9 ' 
in State depository. No officer of this State shall be allowed to re-1895, p. 22. 
ceive any commission, interest or reward to himself from any source 
for the depositing of the State's money in State depositories, or for 
continuing such deposits. The receiving of any such benefit by any 
officer shall be punishable by imprisonment in the penitentiary for 
not less than seven nor longer than twenty years, and disqualifica- 
tion to hold office in this State. 

§202. (1103 v.) Selling arms belonging to the State. If any offi-^f^ 8 " 9, 
cer or soldier shall sell or otherwise dispose of any arms or accou- jjjjj p . ©. 
trements belonging to the State in his possession, custody or control, 
the purchaser shall acquire no title, and such officer or soldier shall, 
upon conviction thereof by a court martial, be dismissed from the 
volunteer force, and, upon conviction thereof in the superior court 
of the county where the offense was committed, shall be punished 
as for a misdemeanor. 



§§208-206 SIXTH DIVISION.— ARTICLE 5. 72 



Banks and bank officers, 



Aol i% 1 ^" 5, £-^- Digging phosphate rock. Any person, natural or artificial, 
who (without having first obtained a license) shall dig, mine, re- 
move or cleanse phosphate rock or phosphatic deposits from the beds 
of the navigable streams of this State, or the banks and margins 
thereof, when the property of the State (except in the prosecution 
of searches authorized by law), shall be guilty of a misdemeanor. 



ARTICLE 5. 

BANKS AND BANK OFFICERS. 

§204. (4426.) Bank officers violating the charter. Any president, 
director, or other officer of any chartered bank in this State, who 
shall violate, or be concerned in violating any provision of the char- 
ter of said bank, shall be punished by imprisonment and labor in 
the penitentiary for not less than one year nor longer than ten years. 

§205. (4427.) Presumption against such officers. Every president, 
director, or other officer of any chartered bank in this State, shall 
be deemed to j>ossess such a knowledge of the affairs of the corpora- 
tion as to enable him to determine whether any act, proceeding or 
omission, is a violation of the charter. And every president and 
director who shall be present at a meeting when such violation shall 
happen, shall be deemed to have concurred therein, unless he shall, 
at the time, cause, or in writing require, his dissent therefrom to be 
entered at large on the minutes of the board. And every president 
and director not present at any meeting when such violation shall 
take place, shall, nevertheless, be deemed to have concurred therein, 
if the facts constituting such violation appear on the books of the 
corporation, and he remain a director for three months thereafter, 
and do not within that time cause, or in writing require, his dissent 
from such illegal proceedings to be entered at large on the minutes 
of the board. 

Cobb, 797. §200. (4428.) Bank insolvency deemed fraudulent. Every insol- 
vency of a chartered bank, or refusal or failure to redeem its bills 
on demand, either with specie or current bank-bills passing at par 
value, shall be deemed fraudulent, and the president and directors 
shall be severally punished by imprisonment and labor in the peni- 
tentiary for not less than one year nor longer than ten years: 
Provided, that the defendant may repel the presumption of fraud, 
by showing that the affairs of the bank have been fairly and le- 
gally administered, and generally with the same care and diligence 
that agents, receiving a commission for their services, are required 



73 SIXTH DIVISION.— ARTICLE 5. 207-211 



Banks and bank officers. 



and hound by law to observe; and, upon such showing, ihe jury shall 
acquit the prisoner. 

§207. (4428a.) Failing to pay deposits. When money is depos- \;"; : : " > ' 
ited on general deposit, with any bant in this State, or with any 

company or individual doing a banking business in this State, and 
such bank or company or individual is insolvent al the time, and 
such insolvency is known to the officers having charge or control of 
such bank or company, or to such an individual, and such bank, or 
company, or individual, shall fail to pay to the depositor, or person 
entitled thereto, within three days after the demand therefor, the 
said deposit, or deposits, then such individual, or such officers hav- 
ing charge or control of such bank or company, who, with the 
knowledge aforesaid, so received such deposits and so failed to pay 
the same, shall be punished by imprisonment in the penitentiary for 
not less than one year nor longer than ten years. 

§208. (4429. ) Certain transfers, etc. , of stock, etc. , fraudulent. All con- Cott>,797-& 
veyances, assignments, transfers of stock, effects, or other contracts 
made by any bank in contemplation of insolvency, or after insol- 
vency, except for the benefit of all the creditors and stockholders of 
said bank shall, unless made to an innocent purchaser for a valuable 
consideration, and without knowledge or notice of the condition of 
said bank, be fraudulent and void. And the president, directors, 
and other officers of said bank, or any of them, making, or consent- 
ing to the making of such conveyances, assignments, transfer, or 
contract, whether the same be made to an innocent purchaser or any 
other, shall severally be punished by imprisonment and labor in the 
penitentiary for not less than four years nor longer than ten years. 

§209. (4430.) Bank officers purchasing its papers at discount. If any Cobb ' ~ 98 - 
president, director, officer, or agent of any bank, shall, by himself 
or agent, or in any other manner, either for himself or for the bank, 
directly or indirectly, purchase, or be interested in the purchase of any 
bill, or check, or other evidence of debt issued by the said bank, for a 
less sum than shall appear then due on the face thereof, he shall be 
punished by imprisonment and labor in the penitentiary for not 
less than four years nor longer than ten years. 

§210. (4431.) Declaring fraudulent dividends. No dividends shall Cobb. re& 
be made by any bank, except from the net profits arising from the 
business of the corporation; and if any president and directors shall 
declare, or pay over any dividend from the capital stock, or any 
other funds of the bank, except the net profits thereof, such presi- 
dent and directors shall, severally, be punished by confinement and 
labor in the penitentiary for not less than four years nor longer 
than ten years. 

§211. (4432.) Purchasing shares with capital stock. If the president Cobb - 7v ' s - 
and directors of any bank, or any of them, shall use and apply any 



|§212-216 SIXTH DIVISION.— ARTICLE G. 74 

Unlawful mining. 

pan of the capital stock of such bank to the purchase of shares of 
its own stock, such president and directors shall be punished by 
imprisonment and labor in the penitentiary for not less than one 
year nor more than ten years. 

A '^} 1S87 * §212. Use or borrowing for personal use prohibited. Any officer or 
agent of any bank or other corporation, who shall use or borrow for 
himself, directly or indirectly, any money or other property belong- 
ing to any bank or other corporation of which he is an officer or agent, 
without the permission of a majority of the board of directors, or of 
a committee of the board authorized to act, shall be guilty of a mis- 
demeanor. 

^ < 5 4 1887 ' §213. Loans by one officer to another without permission. Any officer 
or agent of any bank or other corporation, who shall lend the money 
or property of said bank or corporation to another agent or officer 
thereof-, without the permission of a majority of the board of direc- 
tors, or of a committee authorized to act, shall be guilty of a 
misdemeanor: Provided, nothing in this or the preceding section 
shall be held to relieve any officer so offending from the pains and 
penalties of any other violation of the penal laws of this State when 
the same is committed by means of using or borrowing the property 
of said corporation without the permission so required. 

Actei898, §214. Capital stock and loans. Any officer, agent or director of a 
bank or banking association of this State, who shall violate the pro- 
visions of sections 1934, 1948, 1949, of the Civil Code, or either of 
them, shall be punished by imprisonment in the penitentiary for 
not less than one year nor more than twenty years. 



ARTICLE 6. 



UNLAWFUL MINING. 



A^t^ilai* §215. (4483.) Unlawful mining. If any person shall dig, or take 

i>. 2S8. anc [ carry away from the land of another, any gold, bullion, silver, 

or other metallic substance, with intent to appropriate the same to 

his own use, without having previously obtained permission of the 

owner of such land, he shall be guilty of a misdemeanor. 

Cou,, iu*. §210. (4484.) Erecting or using machinery to procure gold. If any 
person shall erect or use any machinery for the purpose of procuring 
gold or other metals from the land of another, with intent to appro- 
priate the same to his own use, or for any other person, without the 
permission of the owner of the land or his agent, he shall be guilty 
of a misdemeanor. 



75 SIXTH DIVISION.— ARTICLES 7,8. $§217-21$ 

Fraudulent seizures and Levies. Trespass. 
ARTICLE 7. 

FRAUDULENT SEIZURES AND LEVIES. 

§217. (4420.) Fraudulent seizure, etc., of property by pretended ^fSJJ* 4 ' 
United States agents. If any person, fraudulently claiming to act an ]8 '' ,r '- *••■ 
agent or officer of the United States, or any departmenl thereof, 
shall seize, detain, or remove the property of any citizen or resident 
of this State; or, if any person shall claim to be an officer or agent 
of the United States, or any department thereof, with authority to 
make said seizure, detention, or removal, and who shall not have 
such authority, such person, officer, or agent, shall be punished by 
confinement and labor in the penitentiary not less than one year nor 
longer than ten years. 

§218. (4436.) Fraudulent levies. Any person who shall fraudulently c ^f; b ' HiU ~ 
cause any process, attachment, distress, or execution, to be levied on A p t ^ 865 " 6, 
any estrayed animal, or any lot of land, or other property, knowing 
the same not to be subject to such process or writ, shall, on convic- 
tion for the first offense, be punished as for a misdemeanor, and on 
any subsequent conviction, shall be sentenced to labor in the peni- 
tentiary not less than two nor longer than four years. 



ARTICLE 8. a^fc. ^LJLy. «* ^^4 &4 

TRESPASS. 7 9 f ~ ^/ 

§219. (4440.) What acts deemed trespass. The following shall be 2£jsiJ|^ 
deemed and held to be trespass, and indictable, to wit: im%' u6 

1. The willful cutting or felling of any wood, timber, or shade- 
tree, or any chestnut-tree upon the land, inclosed or uninclosed, of 
another, without the consent of the owner. 

2. The taking and carrying away, or attempting to take and carry 
away, any article, or property of any value whatever, from the land, 
inclosed or uninclosed, of another, without the consent of the owner. 

3. The pulling down or removing any fence, or inclosure of another, 
without the consent of the owner. 

4. The squatting or settling upon the land, inclosed or uninclosed, 
of another, whether public or private, with no bona fide claim or color 
of title, and without the consent of the owner: Provided, that this 
paragraph shall not apply to wayfarers who shall camp for a night, 
or, in case of providential detention, for a longer time, on uninclosed 
land, nor to an intruder who shall remove from the land after ten 
days notice. 

Any person committing any of the acts of trespass specified in this Aet ^ S69, 
section, shall be guilty of a misdemeanor. When any person, in vio- 
lation of the first division of this section, shall cut or fell anv chest- 



§§220-228 SIXTH DIVISION.— ARTICLE 8. 76 

Trespass. 

nut-inv or trees upon the lands, inclosed or uninclosed, of another, 
without the consent of the owner, it shall be the duty of the grand 
juries in the several counties of this State to make special present- 
ments of all such offenses coming to their knowledge, in which no in- 
former lias appeared, and any person may prosecute such offenders, 
whether such person is the owner of the lands trespassed upon or 
not. and the informer in such cases shall be entitled to one-half the 
fine which may be imposed and collected for a violation of this 
section. Upon the trial for violation of this section, as to chestnut- 
trees, the burden of proof shall be upon the defendant, to show the 
right or authority under and by which he committed the act, where 
the defendant was not in actual possession of the land when the 
trespass was alleged to have been committed. 

Does not apply to crops which the accused produces, of which he has the 
rightful possession, and in which he has an interest as part owner: 81 Ga. 466. 

If the testimony shows defendant to be guilty of simple larceny, he cannot 
be convicted of trespass. The offenses are not of the same genus. There is no 
animus furandi in trespass: 71 Ga. 361. 

Act 1 V 1 S8 '" 3, §220. Willful trespass upon the lands of another. If any person shall 
willfully enter, go upon or pass over any field, orchard, garden or 
other inclosed or cultivated land of another, after being personally 
forbidden so to do by the owner or person entitled to the possession 
for the time being, or authorized agent thereof, he shall be guilty of 
a misdemeanor. 

A wharf that was not inclosed : 91 Ga. 1. 
Acts 1882-3, §221. (4441.) Hunting on inclosed land. If any person shall hunt 
i874,p P . 21, w ith dogs, firearms or other implements, in or through any inclosed 
^-s- Poland or cultivated field, walk or pasture, after being forbidden so to 

lyyOf j). oo« 

>qtf \L do or ordered to desist therefrom, by the owner thereof, or the per- 
/ 'son having the same in charge, or his agent, he shall be guilty of a 
misdemeanor. Posting a card in two or more places on inclosed 
lands, fields, walks or pastures, and one at the door of the court- 
house in the county where such lands, fields, walks or pastures are 
situated, forbidding all persons to enter upon and hunt thereon, shall 
be held and deemed a legal notice under this section. 

Actei802, §222. Defacing or injuring capitol or grounds. If any person shall 

1895. p. Ks. mar, deface or in any way injure the capitol building, the approaches 
thereto, the trees, shrubbery or grounds belonging to same, or any 
of the furniture, fixtures or property therein, he shall be punished 
as for a misdemeanor. 

Act.si8to. 8228. What courts may try offenders. Either the recorder of the 

p. 10(1. D J J - u 

city of Atlanta or the judge of the criminal court of Atlanta for 
Fulton county is empowered and duly authorized to hear and deter- 
mine any case arising under the provisions of the preceding section, 
and to inflict the punishment prescribed therein. 



77 SIXTH DIVISION.— ARTICLES 9, 10. 224-228 



Qsinghorse and skinning cattle without owner's consent,. Disposing '<r or purchasing drifted 

§224. Janitor* and watchmen authorized to make arrests, The janitora .' J^ 92 * 
and watchmen employed by keeper of public buildings and grounds 
are authorized, under rules prescribed by the Governor and keeper 
of public buildings, to make arrests and convey offenders to the 

police headquarters of Atlanta, to he tried by the' \>v<>\x-v eouri . And 
it shall be their duty to prevent the abuse of said building, to sup- 
press disorderly conduct therein, and protect it and its content-. 



ARTICLE 9. 

USING HORSE AND SKINNING CATTLE WITHOUT OWNER' S CONSENT. 

§225. (4396 a.) Using horse or mule without owner's consent. If A ^ t j s J. ss ' 
any person shall willfully ride or drive any horse or mule belonging 
to another, without his consent, he shall be guilty of a misde- 
meanor. 

Where a constable in Tennessee, wishing to levy on a horse that was in 
Georgia, hired defendant to take the horse to Tennessee, and in doing so de- 
fendant rode the animal in this State without the owner's consent, he was 
guilty : 93 Ga. 415. 

§226. (4404.) Skinning cattle. If any person shall skin any dead ^ ct | 4 1863 " 4 ' 
cow, or any other kind of stock, cattle, sheep, or goats, that does 1 ?^ 
not belong to him, without consent of the owner, his agent or over- 
seer, and shall refuse, on demand of the owner, or his agent or 
overseer, to pay the reasonable value of the skin, he shall be guilty 
of a misdemeanor. 



ARTICLE 10. 

DISPOSING OF OR PURCHASING DRIFTED TIMBER. 

§227. (1565.) Penalty for disposing of drifted timber . No raftsman Cobt>, 23. 
or other person shall dispose, or attempt to dispose, of any drifted 
timber or lumber taken up by him within this State, on pain of 
paying not exceeding five hundred dollars for such offense, to be 
recovered in any court having jurisdiction of the same, one half of 
the penalty to go to the informer, and the other to the use of the 
county wherein such offense may be committed, or the offender may 
be imprisoned not more than six months; but nothing herein con- 
tained shall prevent the finder of drifted timber or lumber from 
requiring and receiving from the owner reasonable compensation for 
delivering to the owner such drifted timber or lumber. 

§228. (1566.) Illegal purchase of drifted timber. Any person who Cobb, 23. 
shall purchase drifted timber or lumber mentioned in the preceding p. 68. 
section, except from factors or timber cutters, shall be guilty of a 
misdemeanor. 



§§229-282 SIXTH DIVISION.— ARTICLE 11. 78 

Firing the woods. 

ARTICLE 11 : 

FIRING THE WOODS. 

t»b,8M. §229. (1450.) Who may. No person but a resident of the county 
where the tiring is done, owning lands therein, or domiciled thereon, 
outside of any town incorporation, shall set on fire any woods, lands 
or marshes, nor shall such persons, except between the twentieth of 
February and the first of April annually. 

Cited: b$ Ga. 508. 

§280. (1457.) Notice. When such person shall desire to set fire 
within said time, he shall notify all persons who occupy lands ad- 
joining him, by residence thereon, or cultivation, or inclosure of 
any portion of the tract or settlement, of the day and hour of the 
firing, at least one day prior thereto. Such notice need not be 
given if, on a sudden emergency, due caution should require firing 
to render one's premises safe. 
-1878-9. §231. (1458.) Penalty. Any person setting fire in violation of the 
two preceding sections, shall be guilty of a misdemeanor. 

§232. (1459.) Penalty for letting woods catch, etc. Persons, either 
by themselves or agents, who permit fire to get into the woods, 
lands or marshes, through neglect, are within the meaning of the 
three preceding sections. 



71) SEVENTH DIVISION.— ARTICLE 1. £2:',:; 



Forgery, counterfeiting, and unlawful currency. 



SEVENTH DIVISION. 



Forgery, Counterfeiting, and Unlawful Currency. 



ARTICLE 1 



FORGERY, COUNTERFEITING, AND UNLAWFUL CURRENCY. 



§233. (4442.) Forging official certificates, etc. Whoever, with intent Cobb,80f) - 
to defraud the State or any person, shall falsely and fraudulently 
make, forge, alter or counterfeit, or 

Cause or procure to be falsely and fraudulently made, forged, 
altered or counterfeited, or 

Willingly aid or assist in falsely and fraudulently making, forging, 
altering or counterfeiting, any 

1. Audited certificate or. other certificate issued or purporting to 
have been issued by the auditor-general, or other officer authorized 
to issue the same; 

2. Any order or warrant issued or purporting to have been issued 
by any officer of the State, or authorized person, on the treasury of 
the State, for money or other thing; 

3. Any warrant for land issued or purporting to have been issued 
by any tribunal, officer or person authorized to do so; 

4. Any certificate, draft, warrant, or order, from any of the public 
officers of this State, issued or purporting to have been issued under 
an Act or resolution of the General Assembly; 

5. Any certificate, draft, order or warrant, issued or purporting to 
have been issued by any court, officer, or person authorized to draw 
on the treasury of the State or for public money, wherever the same 
may be deposited; 

6. Any deed, will, testament, acquittance or receipt; 

7. Any bond, writing obligatory, bill of exchange, promissory 
note, order for money or other thing of value, or any indorsement 
or assignment of said papers; 

Shall be punished by imprisonment and labor in the penitentiary 
for not less than four years nor longer than ten years. 

An immaterial alteration, whereby no damage would accrue to any person, 
would not constitute this crime: 72 Ga. 28. 

The certificates are such as relate to money, property or things of value, and 
do not embrace a license to a teacher: 87 Ga. 429. 



§234 SEVENTH DIVISION.— ARTICLE 1. 80 



Forgery, counterfeiting, and unlawful currency. 



On a charge that the intent was to defraud two persons, the intent to defraud 
either is enough : 75 Ga. 155. Proof of the passing of the writing is admissible 
to show the fraudulent intent with which it was made: 11 Ga. 92. That a 
forged draft was endorsed by defendant, was sufficient evidence of an inten- 
tion to defraud the drawer: 80 Ga. 216. 

The making of a forged deed by the accused is established when it is shown 
that the signatures of the maker and witnesses were unauthorized, were in his 
handwriting, and that he deposited the deed in the clerk's office for record : 
87 tin. 668. If a valuable consideration, the names of vendor and vendee, and 
a warranty of title appear in the instrument, it would pass title, and is the sub- 
ject of forgery : 87 Ga. 668. 

An ambiguity in the forged receipt, properly left to the jury: 75 Ga. 155; 
71/164. 

To forge the name of an acceptor is not the same as to forge the name of an 
indorser: 74. Ga. 17. 

To be a -promissory note the money must be payable absolutely, uncondi- 
tionally and at all events: 24 Ga. 287. Writing a promissory note over one's 
signature is a forgery : 92 Ga. 451. One who wrote a note for an illiterate per- 
son, and, at the request of the maker, signed his name thereto, is not guilty of 
forgery although he falsely and fraudulently inserted too large an amount and 
read over the note as if it contained the true amount: 89 Ga. 788. 

Not necessary that the person whose name is forged to an order should have 
goods in the hands of the drawer : 11 Ga. 92. Conviction may be founded on an 
order purporting to have been made by a married woman : 60 Ga. 184. An 
order, without date, to "pay this man," equivalent to one to pay bearer, and will 
support an indictment: 59 Ga. 784. "George, let the boy have $2.00 worth of 
what he wants," will also: 66 Ga. 157. "Mr. Price, please let Tom Mason 
have five dollars for Thos. Parker, Macon, Ga.," is within the section: 79 Ga. 
344. "Where an order was directed to "Mr. Smith," and it was charged that 
the intention was to defraud Joseph Smith, evidence that it was presented at 
his store, was proper: 59 Ga. 784. Defendant could write, there was no evi- 
dence to implicate another, and the jury could infer he made the alteration: 
64 Ga. 448. 

A writing acknowledged by defendant, admissible for comparison with the 
forged order: 59 Ga. 784. 

Forging and uttering may be joined in the same count : 59 Ga. 784. 

The remedy, after verdict, when the indictment does not allege an intent to 
defraud, or that the order was uttered as true, is a motion in arrest: 79 Ga. 
344. 

Cobb, 8oo. §234. (4442.) Uttering forged certificates, etc. If any person shall 
utter or publish as true any of the false, fraudulent, forged, altered, 
or counterfeited matters mentioned in the preceding section, or any 
indorsement or assignment of any bond, writing obligatory, bill of 
exchange, promissory note, or order for money or goods, or other 
thing of value, with intent to defraud the State, public officers, 
courts, or persons authorized as aforesaid, or any other person, 
knowing the same to be so falsely and fraudulently made, forged, 
altered or counterfeited, he shall be punished by imprisonment and 
labor in the penitentiary for not less than four years nor longer than 
ten y-ars. 



81 SEVENTH DIVISION.— ARTICLE I. 585-288 



Forgery, counterfeiting, and unlawful currency. 



A forged paper must be published ?is true, when the party knows it. to be 

fraudulent, and will) intent to injure another, to make the offense ot uttering 
it: 28 Ga. 367; 56/604. 

§285. (4443.) Counterfeiting or knowingly uttering coimterfeii COWS. Oobb,8M 
If any person shall falsely and fraudulently make, forge or counter- 
feit, or be concerned in the false and fraudulent making, forging and 
counterfeiting of any gold, silver, or copper coin, which is in circu- 
lation within this State; or shall falsely and fraudulently make, or 
be concerned in the false and fraudulent making of any base coin of 
the likeness or similitude of any gold, silver or copper coin, which is 
in circulation in this State; or shall falsely and fraudulently utter, 
publish, pay, or tender in payment any such counterfeit and forged 
coin of gold, silver, or copper, or any base coin, knowing the same 
to be forged, or counterfeited, or base, or shall aid or abet, counsel 
or command the perpetration of either of the said crimes, he shall 
be punished by imprisonment and labor in the penitentiary for not 
less than four years nor longer than ten years. 

Proof of passing base metal will not support a charge of passing counterfeit 
gold coin : 4 Ga. 136. 

A charge that the coin was passed to A., not supported by proof of passing 
to B., through A., an innocent agent of prisoner: 4 Ga. 136. 

Sufficient indictment for uttering base coin of the likeness of a silver dollar : 
6 Ga. 503. 

§236. (4444.) Counterfeiting bank-notes. If any person shall falsely Cobb. soi. 
and fraudulently make, sign, or print, or be concerned in the false 
and fraudulent making, signing or printing of any counterfeit note 
or bill of any bank of this State, or the note or bill of any incor- 
porated bank, whose notes or bills are in circulation in this State, 
or falsely and fraudulently cause or procure the same to be done, he 
shall be punished by imprisonment and labor in the penitentiary for 
not less than four years nor longer than ten years. 

§237. (4445.) Bank check or draft. If any person shall falsely and Cobb.soi. 
fraudulently make, sign, or print, or be concerned in the false and 
fraudulent making, signing, or printing of any check or draft upon 
any bank of this State, or bank as aforesaid; or falsely or fraudu- 
lently procure the same to be done, he shall be punished by impris- 
onment and labor in the penitentiary for not less than three years 
nor longer than seven years. 

A check payable to was so imperfect that no one could have been 

defrauded by it : 51 Ga. 535. 

§238. (4446.) Alteration of bank-notes, etc. If any person shall Cot>b,8oi-2. 
falsely and fraudulently alter, or be concerned in the false and 
fraudulent alteration of any genuine note, bill, check, or draft of, 
or on, any bank as aforesaid; or falsely and fraudulently cause or 
procure the same to be done, he shall be punished by imprisonment 



§§289-243 



SEVENTH DIVISION.— ARTICLE 1. 



82 



Forgery, counterfeiting, and unlawful eurrenoy. 



- 



Cobb. 60-2. 



Cobb. 80-2 



Cobb, 802. 



Cobb, 802. 



and Labor in the penitentiary for not less than three years nor 
longer than ten years. 

It must be charged and proven that the altered bill was genuine : 33 Ga. 225. 

§239. (4447.) Knowingly uttering or passing thou. If any person 
shall falsely and fraudulently pass, pay, or tender in payment, utter 
or publish any false, forged, counterfeit or altered note, bill, check, 
or draft as aforesaid, knowing the same to have been falsely and 
fraudulently forged, counterfeited, or altered, he shall be punished 
by imprisonment and labor in the penitentiary for not less than two 
years nor longer than ten years. 

An indictment under this need not allege an intent to defraud any particu- 
lar person: 94 Ga. 393. 

§240. (4448.) Possessing intending to pass them. If any person shall 
have in his possession any such false, forged, counterfeit, or altered 
note, bill, draft, or check, with intention fraudulently to pass the 
same, he shall be punished by imprisonment and labor in the peni- 
tentiary for not less than two years nor longer than ten years. 

§241. (4449.) Possessing types, paper, etc., intending to counterfeit. 
If any person shall have in his possession any bank paper, types, 
plates or machinery, for the purpose of falsely or fraudulently forg- 
ing and counterfeiting any notes, bills, checks, or drafts, as afore- 
said, he shall be punished by imprisonment in the penitentiary for 
not less than four years nor longer than ten years. 

§242. (4450.) Forging or uttering certain bills, etc. If any person 

shall falsely and fraudulently make, forge, counterfeit, or alter any 

note, bill, draft, or check of, or on, any person, body corporate, 

company, or mercantile house or firm, or purporting so to be; or 

fraudulently and falsely utter, publish, pass, pay, or tender the same 

in payment, or demand payment of the same, knowing the said bill, 

note, draft, or check, to be forged and counterfeited, or falsely and 

fraudulently altered, he shall be punished by confinement and labor 

in the penitentiary for not less than two nor longer than ten years. 

This section does not embrace a forged order for goods: 11 Ga. 100. 
It will perhaps apply to the case of obtaining goods by passing a forged 
note: 29 Ga. 127. 

§248. (4451.) Forging any other writing. If any person shall 
fraudulently make, sign, forge, counterfeit, or alter, or be concerned 
in the fraudulent making, signing, forging, counterfeiting, or alter- 
ing any other writing not herein provided for, with intent to defraud 
any person, bank, or other corporate body, or shall fraudulently 
cause or procure the same to be done, he shall be punished by im- 
prisonment and labor in the penitentiary for not less than two 
years nor Longer than five years. 

This does not embrace uttering or publishing as true, any writing not else- 
where enumerated : 87 On. 431. 



88 SEVENTH DIVISION.— ARTICLE 1. 244-247 



Forgery, coun terfeltl tig, and unlawful currency . 



Any writing in such form as to be the means of defrauding another, may be 
the subject of forgery, or alteration in the nature of forgery: 66 G*« 68; 

83/376 ; 88/27 ; 62/299 ; 56/ 1 72. 

It need not appear on the face of the indictment how the consummation of 
the fraud would bo possible. The intent to defraud and the means by which 
it could have been accomplished are matters of evidence: 83 Ga. 372; 88/27. 

After an alteration in an instrument is shown, evidence of it- sale is admis- 
sible to prove a fraudulent intent: 66 Ga. 53. 

Where the nature of the instrument was in question, this section might be 
given in charge : 59 Ga. 784. 

A conviction, under this section, on a paper which was wrongly called, in 
the indictment, an order in writing: 62 Ga. 299. 

§244. (4452.) Forging or using forged public seals. If any person Oobb f soB-s. 

shall falsely and fraudulently forge or counterfeit, or be concerned 
in forging and counterfeiting the great seal of this State, or any 
other seal authorized by law, or shall falsely and fraudulently cause 
or procure the same to be forged and counterfeited, or shall falsely, 
fraudulently, and knowingly impress, or cause to be impressed, any 
instrument with such forged and counterfeit setJ, or shall falsely, 
fraudulently, and knowingly affix it or cause it to be affixed to any 
instrument, or shall falsely and fraudulently utter or publish any 
instrument impressed with it, knowing it to be forged and counter- 
feit, he shall be punished by imprisonment and labor in the peniten- 
tiary for not less than two years nor longer than ten years. 

That there was a genuine grant, with a proper record of it, did not go to 
charge the prisoner with knowledge that the spurious grant he uttered was a 
forgery. Constructive notice by a public record is no substitute for actual 
notice in establishing the scienter to criminal intention : 55 Ga. 660. 

§245. (4453.) Using fictitious names. Any person who shall draw Cobb - 8m - 
or make a bill of exchange, due-bill, or promissory note, or indorse 
or accept the same in a fictitious name, shall be punished by impris- 
onment and labor in the penitentiary for not less than two years nor 
longer than seven years. 

Not necessary that the act should be done with intent to defraud : 17 Ga. 459. 

When one assumes not only a name which is not his own, but the relation- 
ship of son to another who has no such son, the name is fictitious under this 
section : 90 Ga. 348. 

A check upon a bank is not a bill of exchange within the meaning of this 
section : 92 Ga. 733. 

§246. (4454.) Personating another. If any person shall put his own Cobb - s 03 - 
name to any instrument, representing himself to be a different per- 
son of that name, he shall be punished by imprisonment and labor 
in the penitentiary for not less than two years nor longer than seven 
years. 

§247. (4455.) Obtaining goods, etc. , on false writings. If any per- Cobb - m - 
son shall designedly, by color of any counterfeit letter or writing, 
made in any other person's name, or fictitious name, obtain from 
any person money, or other valuable thing, with intent to defraud 



g§24&-252 SEVENTH DIVISION.— ARTICLE 1. 84 



Forgery, counterfeiting, and unlawful currency. 



any person, mercantile bouse, body corporate, or company of the 
same, he shall be punished by imprisonment and labor in the peni- 
tentiary for not less than two nor longer than seven years. 

This will perhaps apply to the case of obtaining goods by passing a forged 
note: 29 Ga. 127. It does not embrace the crime of forgery: 11 Ga. 100. 

Designating the offense as "forgery," even if inaccurate, was immaterial: 
90 Ga. 452. 

If there are two persons of the same name, and one of them signs that name 
to a note, witli the intention that the note may be used, in trade, as the note 
of the other, it is forgery (Two judges presiding) : 29 Ga. 127. 

Cobb, S47. §248. (445(3.) Unauthorized issue of currency. Any person, or body 
■ -_:$oi---\ corporate, except such banking institutions as by law are authorized 
to issue bills or notes for circulation, who shall make, issue, circu- 
late, pay. or tender in payment (not being an innocent holder thereof) 
any check, order, draft, or bill for the payment of money, or other 
thing having the form or similitude of a bank-note, and intended to 
be used and circulated as money, or circulating medium, shall be 
guilty of a misdemeanor. 

§249. (4457.) Each bill a new offense. The making or issuing each 
check, order, draft, or bill for the payment of money, or other thing 
having the similitude of money, as above, shall be a separate offense; 
and if done by any corporation, the officer or -member of the same 
signing the paper shall be guilty of a misdemeanor. 

Acts^iss-2-3. §250. Conveying land by forged title a felony. If any person shall 
sell, lease, rent, or otherwise convey to another, any land or the tim- 
ber thereon, the title of which is forged, or the grant or any deed or 
conveyance thereof is forged, knowing the same to be forged; or if 
any person shall take possession of or occupy or exercise any acts of 
ownership over any land or the timber thereon, under any grant, 
deed, bond, lease, or other conveyance, which is forged, or any part 
of the title thereof is forged, knowing the same to be forged, such 
person shall be punished by imprisonment and labor in the peniten- 
tiary for not less than one nor more than five years: Provided, that 
the provisions of this section shall not apply to any person whose 
title or possession was acquired by him, or those under whom he 
claims, bona fide and without notice of the fact of such forgery. 

The strict pleading in forgery not required by this section. A substantial 
description of the title is sufficient. An allegation that the acts were done with 
intent to defraud or injure any one, not required: 78 Ga. 349. 

§251. (908.) Collector fraudulently altering digest, guilty of forgery. 
If any tax-collector, with fraudulent intent, alters the digest ren- 
dered to him, or any other of the digests of his county, he shall be 
punished by imprisonment in the penitentiary for not less than two 
nor longer than ten years. 
Aet f«? os ' §252. Trade-marks, etc., of labor unions. Whenever any person, as- 
]>- f '>'-'- Bociation or union of workingmeu shall adopt for their protection, 



85 SEVENTH DIVISION.— ARTICLE I. 153-266 



Forgery, counterfeiting, and unlawful currency 



any Label, 1 rade-mark or form of adverl isemenl announcing I bal goods 
to which such Label, trade-mark and forms of advertisement shall be 
attached were manufactured by such person or by a member of such 
association or union, it .shall be unlawful for any person or corpora- 
tion to counterfeit or imitate Hueh Label, trade-mark or form of ad- 
vertisement, with intent to use the same forthe purpose of deceiving 
the public in the sale of the goods. Every person violal ing this sec- 
tion shall be guilty of a misdemeanor. 

§258. Use of counterfeit prohibited. Every person who shall use any 
counterfeit or imitation of any label, trade-mark or form of adver- 1 * 6 ' ' 
tisement of any such person, union or association, knowing t be same 
to be counterfeit or imitation, shall be guilty of a misdemeanor. 

§254. Unauthorized use of label or trade-mark. Every person whoshall ^ffg? 88, 
use or display the genuine label, trade-mark or form of advertisement lhur >- p- p,:i - 
of any such person, association or union, in any manner not author- 
ized by such person, association or union, knowing that such use or 
display is not authorized, with intent to deceive the public in the 
sale of goods, shall be guilty of a misdemeanor. 

§255. Unauthorized use of name or seal of labor unions. Any person Acts i 893, 
who shall in any way use the name or seal of any such person, asso- 1895 - p- 63 - 
ciation or union, or officer thereof, in and about the sale of goods or 
otherwise, not being authorized to souse the same, knowing that such 
use is unauthorized, with the intent to deceive the public in the sale 
of goods, shall be guilty of a misdemeanor. 



|256 EIGHTH DIVISION.— ARTICLE 1. 8$ 



Perjury, false swearing, and subornation of perjury and false swearing. 



EIGHTH DIVISION. 




Crimes Against the Public Justice and Official Duty. 



ARTICLE 1 



PERJURY, FALSE SWEARING, AND SUBORNATION OF PERJURY AND 

FALSE SWEARING. 

Cobb. 8<»4. §256. (4460.) Perjury shall consist in willfully, knowingly, abso- 
lutely, and falsely swearing, either with or without laying the hand 
on the Holy Evangelist of Almighty God, or affirming in a matter 
material to the issue or point in question, in some judicial proceed- 
ing, by a person to whom a lawful oath or affirmation is adminis- 
tered. 

The State courts have no jurisdiction of perjury committed before a United 
States commissioner in the investigation of a violation of the penal laws of 
the United States: 55 Ga. 192. 

The indictment must allege that the court had jurisdiction to entertain and 
determine the issue., and had power to administer the oath, and that there was 
an indictment or other means of putting the court in possession of the case: 
91 Ga. 712. If the court had not jurisdiction, there can be no conviction: 
79 Ga. 164. 

The production of the record, or a duly authenticated transcript, in the case 
in which the false testimony was given, is essential: 88 Ga. 158. It should 
show jurisdiction: 58 Ga. 397. 

An affidavit for the purpose of procuring a warrant is the beginning of a 
judicial proceeding: 58 Ga. 340. 

Neither perjury nor false swearing can be assigned unless the oath be a 
lawful one: 15 Ga. 246. Taken before a county school commissioner, lawful: 
85 Ga. 539. 

The indictment must show that the thing falsely sworn to was material. 
Perhaps it is sufficient if that appears from the words themselves as set out: 
52 Ga. 242. 

The intent to testify falsely, and the falsity of the testimony, must both 
appear: 71 Ga. 252. 

Knowledge that his testimony is false is tested like intention generally : 
83 Ga. 521. 

Defendant may show thaMie gave the same account of the homicide before 
there was opportunity to bribe him : 83 Ga. 521. Where perjury was assigned 
on the oath of an illiterate witness that he did not make a promissory note, he 
should be allowed to prove an understanding that it was not intended as a 
note: 48 Ga. 170. 



ST EIGHTH DIVISION.— ARTICLE 1. 557-208 



Perjury, false swearing, and subornation of perjury andffl ring 



Where witness swore confusedly to an alibi, was warned to be on his guard, 
and afterwards swore positively and falsely to it, there was sufficient evidence 
of deliberation : 69 Ga. 756. 

It may be shown that accused endeavored to suborn a witness in the former 
case: 88 Ga. 151. All the res gestse of the transaction may be adduced to show 
the falsity: 88 Ga. 151. 

A witness may state that the testimony was false, jit the same time stating 
facts that conclusively show it was false: ( ,YA Ga. 160. 

This indictment sufficient : 70 Ga. 790. Evidence supports these verdicts: 
52 Ga. 581 ; 81/768. 

A convict of this crime is now a qualified witness: SO Ga. 535. 

§257. (4461.) Punishment. Any person who shall commit the 001 ** 80 *- 
crime of perjury shall be punished by imprisonment and labor in the 
penitentiary for not less than four years nor longer than ten y<-nr~. 

§258. (4462.) False swearing defined. False swearing shall consist Cobb,80*. 
in willfully, knowingly, absolutely, and falsely swearing, either with 
or without laying the hand on the Holy Evangelist of Almighty God, 
or affirming in any matter or thing (other than a judicial proceed- 
ing) by a person to whom a lawful oath or affirmation is admin- 
istered. 

§259. (4463.) Punishment. Any person who shall commit the Cobb ' 8(>1 - 
crime of false swearing, shall be punished by imprisonment and 
labor in the penitentiary for not less than three years nor longer 
than ten years. 

§260. (4464.) Subornation. Subornation of perjury and false Cobb.sw. 
swearing shall consist in procuring another person to commit the 
crime of perjury or false swearing. 

§261. (4465.) Punishment. Any person who shall commit the 00131 *' 804 - 
crime of subornation of perjury, or false swearing, shall be punished 
by confinement and labor in the penitentiary for not less than three 
years nor longer than ten years. 

§262. (4468.) False witness causing death . If any person, by will- Cobb - 804 " 5 - 
ful and corrupt perjury, shall take away the life of another, or, by 
such willful and corrupt perjury, convict another of any offense 
which, by this Code, is punishable with death or perpetual impris- 
onment, such person shall be punished with death or perpetual im- 
prisonment. 

§263. Contractor making false affidavit. Every person, firm or cor- Act .f„l S90 " 1 - 
poration that gives out to contract the building or constructing of s\ ~ . 
any house, store, mill, railroad, or other structure of like nature. C^Z ** 
shall retain twenty-five per cent, of the contract price thereof until ^** >^J^r^ 
the contractor shall submit to such person, firm or corporation an tf(±~ *7 
affidavit that all debts incurred for material and labor in building 
or constructing such house, store, mill, railroad, or other structure 
of like nature, have been paid, or that the persons to whom such 
debts for material and labor are owed have consented to the payment 



§§264t-269 EIGHTH DIVISION.— ARTICLE 2. 88 

Bribery, influencing Governor or head of department. 

of -aid twenty-five per cent.; and swearing falsely in making the 
affidavit is a misdemeanor. 

§264. (838.) False oath by a taxpayer. If any oath, taken by a 
taxpayer in compliance with law, is false, the person taking it is 
guilty o( false swearing and is liable to be punished therefor, as pre- 
scribed in section 259. The entry in the digests of the taxpayer's 
returns, shall be prima facie evidence of his having taken such oath. 
• v: - §265. Weekly reports by tax-collector^. The tax-collectors in each 
county having a population of thirty thousand or more, shall make 
duplicate weekly reports to the comptroller-general and the county 
authorities of the aggregate amount of taxes collected during said 
week, naming separately the amount of taxes collected for the State 
and the county, and shall swear that the same is a correct report of 
the taxes collected as aforesaid; and if any such tax-collector makes 
out a false return of the matters required to be reported, he shall be 
subject to all the pains and penalties of false swearing. 
\;^ s -" 3 - §266. Violation of oath by jury commissioner and clerk. In case any 
jury commissioner, or clerk of the superior court, shall willfully and 
intentionally violate the terms of their respective oaths as prescribed 
by law, he shall be guilty of false swearing, and shall be punished by 
imprisonment and labor in the penitentiary for not less than one 
year nor longer than five years. 



ARTICLE 2. 

BRIBERY, INFLUENCING GOVERNOR OR HEAD OF DEPARTMENT. 

§267. (4469.) Bribery defined. Bribery is the giving or receiving 
any undue reward to influence the behavior of the person receiving 
sue]] reward in the discharge of his duty, in any office of government 
or of justice. 

Cobb, bos. §268. (4470.) Punishment. If any person shall, directly or indi- 
rectly, give, or offer to give, any money, goods, or other bribe, present 
or reward; or give or make any promise, contract, or agreement for 
tii" payment, delivery, or alienation of any money, goods, lands, or 
other bribe; or use any promises, threats, persuasions, or other like 
sinister, unfair, or fraudulent practices in order to obtain or influence 
the opinion, judgment, decree, or behavior of any member of the 
General Assembly or officer of this State, referee, or arbitrator in 
any matter, or cause depending, or which shall depend before him, 
such person, and the officer, referee, or arbitrator, who shall accept 
or receive such bribe, shall be guilty of a misdemeanor. 

Act»M78-9, §269. (4470a.) Influencing Governor, etc. If any official, or clerk, 
or employee of any official, of any of the departments of the gov- 
ernment of t his State, shall receive orcontract to receive, any money, 



si) EIGHTH DIVISION.— ARTICLE 8. '70-275 



Misconduct by officers and persons concerned in the adm on of joi 

fee, reward or other thing of value in consideration of, or for in- 
fluencing or attempting to influence, or procuring or attempting to 
procure any other person to influence or attempt to influence the 
Governor of this Slate, or the head of any of I he depari mentfl of I he 
government of this State, in the discharge of any official duty, of 
any of them, and shall actually so influence or attempl to influence, 
or shall procure or attempt to procure any other person to influence 
or attempt to influence said Governor or 1 1h> head of ei1 her of said de- 
partments, in the discharge of any official duty of any of them, .such 
official, clerk or employee shall be punished by imprisonment in the 
penitentiary for not less than one nor more than twenty years. 



ARTICLE 3. 

MISCONDUCT BY OFFICERS AND PERSONS CONCERNED IN THE ADMINISTRA- 
TION OF JUSTICE. 

§270. (146.) Failure to take and file official oath. If any officer or Actsi», 
deputy who is required by law to take and file an official oath shall 
enter upon the duties of his office without first taking and filing the 
same in the proper office, he is guilty of a misdemeanor. 

§271. (1599, 1600.) Scalesman failing to take and file oath. If any Acts Jp- 
scalesman, salesman, or other person, in any of the cities, towns or^- 
villages of this State, to weigh any article of produce disposed of by 
weight, weighs such produce, without having taken and filed the oath 
prescribed by law, he and the factor, or person who may employ 
him, shall be guilty of a misdemeanor. This section shall apply only 
to parties weighing said articles for sale, and not to persons weighing 
their own produce. 

§272. (156.) Acting before filing bond a misdemeanor. If any public -\ et | 3 1895, 
officer, required by law to give bond, performs any official act, before 
his bond is approved and filed as required, he is guilty of a misde- 
meanor. 

§273. (916.) Collector not to collect tax before giving bond. etc. K^teM?*' 
any tax-collector collects, or attempts to collect, any tax before he p- 63 - 
has given, and had approved, the necessary bonds and security, and 
taken the oaths of office, he is guilty of a misdemeanor. 

§274. (922.) Refused of receiver to receive returns, etc. If any tax- A ' n ,. s 1S95, 
receiver refuses to receive any return of taxes when properly ten- 
dered in presence of a witness, and in the time the law requires, 
he is guilty of a misdemeanor. 

§275. Unlawful to exempt manufacturing or other property from taxa- A 1 ct | 5 iss9 ' 
tion, etc. No county authority shall exempt from taxation any 



§§276-280 EIGHTH DIVISION.— ARTICLE 3. 90 



Misconduct by officers and persons concerned in the administration of justice. 



manufacturing industry or enterprise, or any property of any kind 
not exempt by Law. 

It shall be the duty of the tax-receiver of each county to have all 
such property, whether exempted by the county authorities or not, 
which is required by law to be returned for taxes in the several 
counties of this State, returned for taxation, and it shall be the duty 
of the tax-collector of each county to collect the taxes assessed upon 
all such property. Any tax-receiver or tax-collector violating the 
provisions of this section, shall be guilty of a misdemeanor. 
A P et & 1895 ' §276. (561,562.) Treasurer shall 'not purchase orders at a discount. If 
any county treasurer shall buy up any county orders or claims for 
less than their full par value, either by himself or agents, directly or 
indirectly, or by paying for them in property at an estimated value 
above its true value, or refuse to pay an order when he has funds to 
pay the same, or illegally postpone one, he shall be removed from 
office on complaint and proof being made to the ordinary, and is 
moreover guilty of a misdemeanor. 

A sufficient indictment: 47 Ga. 522. 

Defendant cannot show that his vendor had no title: 47 Ga. 522. 

Acts^i878-9. §277. (4562 g.) Speculating in county orders. If any public officer 
of any county in this State shall buy up at a discount, or in any man- 
ner speculate in what are known as "county orders, " or in "jury 
scrip, " or any other order or scrip which is to be paid out of any 
public fund of this State, or of any county in this State, he shall be 
punished as for a misdemeanor, and shall be removed from office. 

Act | 1895 » §278. (581.) False survey and penalty . If any county surveyor, or 
other person acting as such, knowingly surveys land as vacant land 
which is not, or makes any other false survey, he is guilty of a mis- 
demeanor. 

ActS i 1 p^ 89 ' §279. (493 d.) Letting contract for public work. If any ordinary, 

,!§' ,., commissioner of roads and revenues, or other officer having charge 

1895. p. 64. ' \ o o 

of the roads and revenues and buildings of the county shall let out 
any contract for building or repairing any public work, as mentioned 
in sections 844, 345 and 346 of the Civil Code, without complying 
with said sections; or if any one of said officials shall receive, take, 
or contract to receive or take, either directly or indirectly, any part 
of the pay or profit arising out of any such contract, he shall be 
guilty of a misdemeanor. 

§280. (4471.) Stealing, altering, etc., of public documents. If any 
public officer, or other person, shall steal, embezzle, alter, corrupt, 
withdraw, falsify, or avoid any record, process, charter, gift, grant, 
conveyance, or contract; or shall knowingly and willingly take off, 
discharge, or conceal any issue, forfeited recognizance, or other for- 
feiture; or shall forge, deface, or falsify any document or instrument 
recorded, or any registry, acknowledgment, or certificate; or shall 



Dl EIGHTH DIVISION.— ARTICLE 8. 581-286 



Mi scon (I iic. i, by officers and persons concerned In the administration of Ju* 

alter, deface;, or falsify any minute, document, hook, or any proceed- 
ing whatever, of or belonging to any public office within this State; 
or if any person shall cause or procure any of the offenses aforesaid 
to be committed, or be in anywise concerned therein, he shall be 
punished by imprisonment and labor in the penitentiary for not less 
than two years nor longer than ten years. 

§281. (4472.) Unlawful to sell office or divide profits thereof . It' any At ; t ^ 1 '' 2 * 
person who has been elected to any office in this State shall sell or 
farm out said office, or if any person shall purchase or agree' to give 
any money or other thing of value to a person elected, for the privi- 
lege of exercising the duties of said office; or if any person shall 
promise or agree to divide the profits, fees or emoluments of said 
office with the person so elected, he shall be punished by confinement 
and labor in the penitentiary for not less than one year nor longer 
than three years. 

§282. (4473.) Cruelty in jailers. If any jailer, by too great a du- Cobb - **• 
ress of imprisonment, or other cruel treatment, shall make or induce 
a prisoner to become an approver, or accuse and give evidence against 
another, or be guilty of willful inhumanity or oppression to any 
prisoner under his care and custody, he shall be punished by removal 
from office, and imprisonment and labor in the penitentiary for not 
less than one year nor longer than three years. 

§283. (4474. ) Officers detaining books, etc. , from successors. If any offi - Cobb ' 805 -* 1 
cer, after the expiration of his term, shall willfully and unlawfully 
withhold or detain from his successor the records, papers, documents, 
books, or other writings belonging to his office, or mutilate, destroy, 
take away, or otherwise prevent the complete possession by his 
successor of said records, documents, papers, books, or other writ- 
ings, he shall be guilty of a misdemeanor. 

§284. (4477.) Assault under color of office. If any officer of this Cobb,8()6 - 
State, shall assault or beat any individual under color of his office, 
or commission, without a lawful necessity so to do, he shall be 
guilty of a misdemeanor. 

§285. (4486.) Refusing to receive prisoner. If any sheriff, coroner, C ^- 807 - 
constable, keeper of a jail, or other officer, whose duty it is to receive 
persons charged with, or guilty of, an indictable offense, shall refuse 
to receive and take charge of such person, he shall be punished by 
confinement and labor in the penitentiary for not less than two years 
nor longer than seven years, and shall be dismissed from office. 

§286. (4487.) Refusing penitentiary prisoner. If the keeper of a 00 ^- 507 - 
penitentiary, or other officer or person employed there, whose duty 
it is to receive convicts, shall fail or refuse to do so, he shall be pun- 
ished by confinement and labor in the penitentiary for not exceeding 
ten years; and shall be dismissed from office. 



§8287-292 EIGHTH DIVISION.— ARTICLE 8. 92 



sconduct by officers and persons concerned in the administration of justice. 

§287. (4493.) Conspirators to cheat or defraud the State or county. 
[f two or more persons shall conspire or agree to defraud, cheat, or 
illegally obtain from the State or any county thereof, or from any 
puMic otttcer of this State, or any county thereof, or any person ex- 
eroising the duties o\' any such office, any property belonging to 
said State or county, or under the control or possession of said offi- 
cers as Buch, they shall be punished by imprisonment and labor in 
the penitentiary for not less than two nor longer than ten years. 

A .;"\V SJ ' §2SS. (4494.) Public officers conspiring to cheat or defraud the State 
or county. If any person holding any public office in this State shall 
conspire or agree with any person in or out of office, to cheat or de- 
fraud, or illegally obtain from, the State, or any county thereof, 
any property mentioned in the preceding section, he shall be pun- 
ished by imprisonment and labor in the penitentiary for not less 
than two nor more than ton years. 

Ac '^- lv: -- §289. (4495.) Members of General Assembly embraced. All the pro- 
visions of the two preceding sections are extended to members of the 
General Assembly, conspiring or agreeing by fraud, bribery, or other 
unlawful means with other members, or persons not members, of the 
General Assembly, to procure the passage of laws to defraud the 
State, or any county thereof, or any public officer of the State or 
county, of any property mentioned in section 287 of this Code. 

Act | 5 187 ' 2 ' §290. (4496.) Offenses, complete when. The offenses described in the 

three preceding sections, shall be complete when the conspiracy is 

effected, and shall be punished, whether the same be carried into 

effect or not. 

' i44, §291. (4504,) Malpractice by justices of the peace and others. Any 

'~ 6 ' ordinary, member of any board of commissioners, county judge, or 

lira pn 23 justice of the peace, who shall be charged with malpractice in office, 

Joe, p. 63. or w ith using oppression or tyrannical partiality, or with willfully 
refusing or failing to preside in or hold his court at the regular terms 
thereof, or when it is his duty under the law to do so, or with using 
any other means to delay or avoid the due course or proceeding of 
law. or with any other conduct unbecoming the character of an up- 
right magistrate, or who shall willfully and knowingly demand more 
cost than he is entitled to by law, in the administration and under 
color of his office, shall be punished as for a misdemeanor and shall 
be removed from office. 

Commissioned notaries public who are ex officio justices are embraced in 
this section : 46 Ga. 208. 

A grand juror should bring to the attention of his fellows his knowledge 
touching this offense: 73 Ga. 205. 

Cobb. 044, §292 . ( loO 1 . ) I iid ict 1 1 wai for malpractice . An indictment under the 

Actei878, preceding sect ion shall specially set forth the merits of the complaint, 

and a copy thereof shall be served on the defendant before it is laid 



93 EIGHTH DIVISION.— ARTICLE 8. J98-296 



Misconduct by officers and persons concerned In the administration of j 



before the grand jury. The prosecutor, and 1 he defendant , and I fjeir 
witnesses, .shall have the right of appearing before, and \><-\i\n i heard 

by, the grand jury. 

The object is to give the officer a hearing before the grand jury, and if there 
is a prosecutor, to give him an opportunity to be, heard. The power of the 
grand jury is not limited to cases in which there is a prosecutor: 73 Ga. 205. 

It is not sufficient, as in ordinary cases, in the indictment, to set forth the 
offense in the language of the Code. It must specially set forth the merits of 
the complaint: 45 Ga. 555. 

If it charges "malpractice" without adding the words "in office," it is de- 
murrable : 54 Ga. 653. 

If drunkenness be alleged, it should set forth the wrong done by some official 
act, or omission to act, resulting from the drunkenness: 54 Ga. 653. A suffi- 
cient indictment : 57 Ga. 420. 

If an illegal act be willfully and knowingly done, it is corruptly done: 75 
Ga. 385. 

Service of a copy of the indictment, except that it did not contain the names 
of the grand jurors, was a substantial compliance: 75 Ga. 382. Service of a 
copy of the presentment, sufficient: 73 Ga. 205. No error to refuse to furnish 
a second copy : 46 Ga. 209. 

§293. (4505.) Dockets of justices and notaries. Justices, and nota- Ac ^ s 4 1 . 87 ^ 2 ' 
ries public who are ex officio justices of the peace, shall keep separate \^:^ J - 32 " 
dockets of all civil and criminal causes disposed of by them, which pp- " 6 - "■ 
dockets shall show: 

1. The actual disposition of each case. 

2. An itemized bill of costs charged or collected, and from whom 
collected. 

8. For what officer and service, each item is charged. 

The justices and notaries public shall lay their dockets before the 
grand juries of their respective counties on the first day of each term 
of the superior court, for inspection. 

§294. (4505.) Report to grand jury by justices as to books of prede- ^f^Jif' 
cessor. Justices of the peace, and notaries public who are ex officio ilso-i P ' 
justices of the peace, who have been elected or appointed since the pp ' ,h " 
previous session of the grand jury, shall, at the time of exhibiting 
their dockets as required in the preceding section, also report to the 
grand jury whether their predecessors in office have delivered to them 
the copies of the Code and Acts of the General Assembly which 
they have received from the State, as required by law, and if said 
predecessors in the office of justice of the peace, or notaries public 
who are ex officio justices of the peace, have withheld or detained 
those books, then the grand jury shall make a special presentment 
against such person or persons withholding or detaining such books 
under section 283 of this Code. 

§295. (4505.) Punishment for violating preceding sections. Any jus- 
tice, or notary public who is ex officio a justice of the peace, who 



£>_. 



§§296-800 EIGHTH PI VISION.— ARTICLE 3. 94 



! sconduct by officers and persons concerned in the administration of justice. 

shall fail tocomply with either of fche two preceding sections, or who 
shall make a false entry or return of any matter, shall be guilty of 
malpractice in office, and shall be punished as prescribed in section 
291. Precedence shall be given, by the courts, to the trial of such 
prosecutions over all other eases. 

a 1884-6, §296. Magistrates indicted for malpractice may not act. No justice 
of the peace, or notary public who is ex officio justice of the peace, 
shall exercise the duties or functions of his office or perform any 
act therein after an indictment or general presentment of a grand 
jury has been returned against him for malpractice in his office, 
until the termination of the case made by the indictment or pre- 
sentment: Prodded, the grand jury finding the indictment or pre- 
sentment shall in their general presentments recommend such 
suspension from duty. A violation of the provisions of this sec- 
tion shall be a misdemeanor. 

Acts 188-2-3, 8297. Tax-collector* and treasurers to render accounts. The failure or 

p. 82. £ 

refusal of any tax-collector or county treasurer to render the account 
and make the showing provided for by section 414 of the Civil Code, 
after being notified so to do by the proper officer, shall constitute 
malpractice in office, and a conviction therefor shall subject the 
offender to removal from office. 

Cobb, 809. §298. (4507.) Extortion defined. Extortion shall consist in any 
rz-— ~ public officer's unlawfully taking, by color of his office, from any per- 
son, any money or thing of value that is not due to him, or more 
than his due. 

Only public officers, either de jure or de facto, can be convicted of extortion : 
56 Ga. 385. 

Money voluntarily offered and paid by defendant in a warrant and received 
in good faith for the purpose of settling the prosecution and not for the offi- 
cer's own use, is not extortion : 56 Ga. 385. 

It is admissible to show defendant's experience, and familiarity with the du- 
ties of the office, to throw light on the question of guilty intention : 56 Ga. 385. 

Cobb, 80&. §299. (4508.) Punishment. Any public officer who shall, by him- 
self , his deputy, agent, or other person employed by him, be guilty of 
extortion in demanding and receiving other and greater fees than by 
law are allowed him; or shall, by color of his office, take from any 
person any money, or other thing of value, that is not due to him, or 
more than his due, shall be punished as for a misdemeanor and shall 
be dismissed from office. 

.v-r, ^78-&. §300. (4508a.) Attorney-general taking fees. If the attorney- 
general of this State shall charge or demand or receive any fee, per- 
quisite or compensation, other than his salary, in any case in which 
the State is a party, or in any manner interested, he shall be guilty 
of extortion, and shall be imprisoned in the penitentiary for any 



95 EIGHTH DIVISION.— ARTICLE \ 



Personating In bail. 



time not less than two, nor more thai] twenty years, and shall be re- 
moved from office, and forever disqualified from holding any office ol 

honor, profit or trusl in this Slate. 

§801. (4707.) Excessive costs, misdemeanor. Any officer of court, \ 
knowingly demanding as costs from a defendant, fees to which be is ; 
not entitled, and any solicitor-general who shall demand or receive 
any fee, or costs, on any criminal case which has not been tried by a 

petit jury, or otherwise finally disposed of, shall be guilty of a mis- 
demeanor. 

§302. (3700b, 3700a.) Fee bill to be posted in office Penalty for 
illegal fees. Every magistrate, or ex officio justice of the peace, <>r 
constable, shall keep a printed or plainly written copy of the fee bill 
posted in some conspicuous place in his office, and upon failure to do 
so, or upon violation of any part of this or sections 5403, 5405 
of the Civil Code, shall be guilty of malpractice, and subject to the 
penalties and punishment prescribed therefor. And if any justice of 
the peace, notary public, or constable, shall demand and receive any 
larger or other fee for his services than set forth in the fee bills pre- 
scribed in said sections of the Civil Code, he shall be subject to all 
the pains and penalties prescribed $pv the collection of illegal costs. 

§303. (37041^.) Penalty for demanding more than legal rate for Aet *. M78 ^' 
advertising. Any ordinary, sheriff, coroner, clerk, marshal, or other 
officer who shall receive, collect, or demand other and greater fees 
for advertising than are provided by law, shall be guilty of extor- 
tion, and shall be punished as for a misdemeanor. 

§304. (3704 d.) Retaining part of advertising fee. If any officer Aetsisrs- 
shall demand or retain any part of the rates allowed by law to pub- 
lishers for publishing legal advertisements, by way of commissions, 
either directly or indirectly, he shall be guilty of extortion, and 
punished as for a misdemeanor. 



ARTICLE 4. 



PERSONATING IN BAIL. 



§305. (4475.) Personating in bail, judgment, etc. If any person. Cobb - 806 - 
except the attorney of record, shall acknowledge, or procure to be 
acknowledged, in any of the courts of this State, or before any 
authorized officer, any recognizance, bail, or judgment in the name 
of any other person not privy or consenting thereto, he shall be pun- 
ished by imprisonment and labor in the penitentiary for not less 
than one year nor longer than four years. 



§§906-308 EIGHTH DIVISION.— ARTICLES 5,6. 96 

Obstructing legal process, and sentence or order of court. Rescue and escapes. 

ARTICLE 5. 

OBSTRUCTING LEGAL PROCESS, AND SENTENCE OR ORDER OF COURT. 

0obb,8oe. §306. (4470.) Obstructing legal process. If any person shall know- 
ingly and willfully obstruct, resist, or oppose any officer of this 
State, or other person duly authorized, in serving, or attempting to 
serve or execute any lawful process, or order; or shall assault or beat 
any officer, or person duly authorized, in serving or executing any 
process or order aforesaid, or for having served or executed the same, 
lie shall be guilty of a misdemeanor. 

Proof that a person acts as a public officer is prima facie sufficient to show 
that he is such officer : 21 Ga. 217. 

It is error to charge that the resistance might be by argument: 41 Ga. 507. 

This offense takes place while the officer is attempting to execute the process : 
22 Ga. 69. Resistance to him is resistance to the public authority : 60 Ga. 314. 

The word " obstruct " must be construed with reference to the words "resist 
or oppose" which imply force. The crime consists in obstructing, resisting 
or opposing an officer, not merely in impeding or defeating the execution of 
the process: 76 Ga. 721. 

It is not an offense under this section to resist the levy of ataxj^./a. which 
is signed " W. E. Smith, " without it appearing on the paper that he was tax- 
collector: 79 Ga. 550. 

Obstructing possessory warrant for a dog: 91 Ga. 44. This offense cannot be 
settled under section 956: 41 Ga. 507. 

Acts & i895, §307. Obstructing order or sentence after trial. Any person who shall, 
by violence, threat of violence, or any other means, hinder, obstruct, 
or interfere with any sheriff, constable, or their deputies, charged 
with the duty "and engaged in the business of carrying out and exe- 
cuting the sentence or order of court, after trial of criminals, while 
they are in the custody of such officers, shall be punished as for a 
misdemeanor, or by imprisonment in the penitentiary for not less 
than one nor more than four years, in the discretion of the court. 
This section shall in no way interfere with nor affect the penal laws 
relating to obstructing legal process before trial of the persons 
charged with crime, nor shall it free the officers aforesaid from 
penalties imposed by law for failure to discharge their duty. 



ARTICLE 6. 

RESCUE AND ESCAPES. 

Cobb, a*. §808. (4478.) Rescue defined. Rescue is the forcibly and know- 
ingly freeing another from arrest or imprisonment. 

Rescue takes place where there is no effort on the part of the prisoner to 
<-,<-•;, o" : 82 Ga. 544. 



97 EIGHTH DIVISION.— ARTICLE 6. B09-618 

Befcue and escapes. 

§309. (4479.) Rescue. — Criminal process. If any person shall rescue JjSI'iSi 

another in legal custody on criminal process, he shall, on eonvic- ' > '-^'-- 
tion, receive the same punishment as the person rescued would, on 
conviction, be sentenced to receive; but if the person rescued shall 
have been acquitted of the crime charged against him, the person 
rescuing shall be guilty of a misdemeanor. 

8310. (4480.) Rescue. — Civil process . If any person shall rescue Oobb,8». 
; ' J J l Acta I88M, 

another m legal custody on civil process, he shall be guilty of a p.2». 

misdemeanor. 

§311. (4481.) Attempt to rescue. If any person shall attempt to°jJJ*i*£' 
rescue another in legal custody on criminal process, he shall be pun- p- ''''■'■ 
ished by confinement and labor in the penitentiary for not less than 
one year nor longer than two years. 

§312. (4482.) Assisting- to escape from jail. If any person shall aid Cobh ' 8W * 
or assist a prisoner, lawfully committed or detained in jail, for an 
offense against this State, or under any civil process, to make his 
escape from jail, whether such escape be actually effected or not, or 
if any person shall convey, or cause to be delivered to such 
prisoner, any disguise, instrument, or arms, proper to facilitate the 
escape of such prisoner, he shall be punished by confinement and 
labor in the penitentiary for not less than one year nor longer than 
four years. 

Confessions of the wife in connection with her peculiar access to one of the 
augers that was used and to the jail to visit her husband, authorize convic- 
tion : 56 Ga. 44. 

That an escaping prisoner used a saw upon the fastenings of the door to 
the cell of a fellow-prisoner in such a way as to indicate a purpose to open that 
door, is evidence enough to convict : 88 Ga. 169. 

§313. (4483.) Assisting to escape from custody. If any person shall Cobb, sot. 
aid or assist a prisoner to escape, or attempt to escape, from the 
custody of an officer, or other person, who shall have the lawful 
charge of such prisoner, he shall be punished by confinement and 
labor in the penitentiary for not less than one year nor longer than 
five years. 

This offense consists in inciting, supporting prisoner's exertions in his own 
behalf : 82 Ga. 544. 

The fact of custody is for the jury. The court should acquaint them with 
the law to enable them to distinguish legal from illegal custody : 56 Ga. 61. 

The legal character of the custody need not be positively known to the of- 
fender, if he has good reason to believe it, or is grossly negligent in the use of 
means to inform himself : 56 Ga. 61. 

Custody by a private person after a legal arrest without warrant, becomes 
illegal if unreasonably protracted ; and whether the time was reasonable or 
unreasonable is for the jury under instructions from the court: 56 Ga. 61. 
Actual guilt of a person thus held in custody, not indispensable to its legality, 

7 



£§814-318 EIGHTH DIVISION.— ARTICLE 6. 98 

Rescue and escapes. 

niul neither conviction nor prosecution is prerequisite to conviction of another 
for assisting accused to escape: 56 da. 61. 

Names of the posse need not be set out in the indictment, and the State may 
prove that defendant obstructed either of the } ) osse during the attempt to es- 
cape : 63 Ga. 402 . 

The attempt to escape continues as long at least as the prisoner is fleeing 
and the officer and posse are in sight and in hot pursuit ; and the act of imped- 
ing the pursuit by holding or obstructing any of the posse so in pursuit, is 
within this offense: 63 Ga. 402. 

To aid the escape from a marshal de facto of a town is a violation, and an of- 
ficer de facto may be proved by his acts : 82 Ga. 547. 

A p t .y SS4 " 5 ' §314. (4488a.) Penalty for escapes in misdemeanor cases. If any 

p. 11-. person shall be convicted of an offense below the grade of felony, 

and shall escape from the chain-gang or other place of confinement 

or imprisonment for the violation of any municipal, county or State 

laws, and be thereafter retaken, he shall be guilty of a misdemeanor. 

p'iis 876 ' §^15. (4483b.) Aiding to escape. If any person shall aid or 
assist, or attempt to aid or assist, a prisoner to escape, so confined 
or imprisoned, he shall be guilty of a misdemeanor. 

ActonJ&g §316. (4484.) Escape from penitentiary. If any person confined 
in the penitentiary shall escape therefrom, and be thereafter re- 
taken, he shall be indicted for an escape, and, on conviction, shall 
be punished by imprisonment and labor in the penitentiary for not 
less than three months nor longer than four years; and any person 
who shall aid or assist a prisoner confined in the penitentiary to es- 
cape, or in an attempt to escape therefrom, shall receive the like 
punishmentr 

Cobb, sot. §317. (4485.) Voluntary escapes. If any sheriff, coroner, con- 
stable, keeper of a jail, keeper, officer, or other person employed in 
the penitentiary, having any offender, guilty, or accused of, or con- 
fined for, any crime, in his custody, shall voluntarily permit or 
suffer such offender to escape and go at large, every such sheriff, 
coroner, constable, keeper of a jail, keeper, officer, or other person 
employed in the penitentiary, shall be punished by confinement and 
labor in the penitentiary for not less than two years nor longer than 
seven years, and shall, if a public officer, be dismissed from office. 

C Art S o"sf>c §318- (4059.) Trials for escapes from penitentiary. The trial of 
OojJJ^ot" prisoners escaping from the penitentiary shall be had for such 
escape before the superior court of the county in which the escape 
occurs, and prisoners so escaping shall remain in the penitentiary 
and be treated as other convicts after their apprehension, until such 
trial shall take place; and upon such trial, the copies of the records 
transmitted to the keeper of the penitentiary relative to the former 
trials of such prisoners shall be produced and filed of record in the 
said superior court. 



99 EIGHTH DIVISION.— ARTICLES 7,8. B19-822 



Lobbying. Receiving, harboring or concealing guilty person!, and eompounding crimes. 



ARTICLE 7. 

LOBBYING. 

§319. (4486 a.) Lobbying defined . Lobbying is any personal solici- *J*f jJJJ • 

tation of a member of the General Assembly of this State, during 
a session thereof , by private interview or letter, or message, or oilier 
means and appliances, not addressed solely to the judgment, to 
favor or oppose, or to vote for or against any bill, resolution, report 
or claim, pending or to be introduced in either branch thereof, by 
any person who misrepresents the nature of his interest in the 
matter to such member, or who is employed for a consideration by 
a person or corporation interested in the passage or defeat of such 
bill, resolution, report or claim, for the purpose of procuring the 
passage or defeat thereof. But this does not include such service as 
drafting petitions, bills or resolutions, attending to the taking of 
testimony, collating facts, preparing arguments and memorials, and 
submitting them orally, or in writing, to a committee or member of 
the General Assembly, and other services of like character, intended 
to reach the reason of the legislators. 

§320. (4486 b.) Lobbying, how punished. Lobbying shall be ^ ct | 187& * 9 ' 
punished by confinement in the penitentiary for not less than one 
year nor more than five years. 



ARTICLE 8. 



RECEIVING, HARBORING OR CONCEALING GUILTY PERSONS, AND 

COMPOUNDING CRIMES. 

§321. (4490.) Receiving, harboring, guilty persons. If any person Cobb ' 806 - 
shall receive, harbor, or conceal any person guilty of a crime pun- 
ishable by death, or imprisonment and labor in the penitentiary, 
knowing such person to be guilty, such person so receiving, harbor- 
ing, or concealing, shall be deemed an accessory after the fact, and 
shall be punished by imprisonment and labor in the penitentiary for 
not less than one year nor longer than three years. 

§322. (4490a.) Harboring convicts. If any person shall harbor, Acts istb, 
secrete, entertain, employ or keep, or shall directly or indirectly 
suffer or permit to be harbored, secreted, entertained, employed or 
kept, in or about his house or premises, any escaped convict from 
the penitentiary, or any chain-gang of this State, or any county 
thereof, knowing such party to be an escaped convict, he shall, if 
such convict be under sentence for felony, be punished by imprison- 






EIGHTH DIVISION.— ARTICLE 9. 



100 



Barratry and tnu bra eery. 



Jobb. SOS. 



mem and labor in the penitentiary, not less than one nor more 
than four years; and if such escaped convict be under sentence for 
a misdemeanor, such person so harboring, secreting, entertaining, 
employing or keeping such convict, or permitting the same to be 
clone, shall be guilty of a misdemeanor. 

§323. (4491.) Compounding crimes. If any person shall take or 
feceive any money, goods, chattels, lands, or other reward, or prom- 
ise to compound, or shall, for any cause, compound any crime or 
offense punishable with death or imprisonment and labor in the 
penitentiary, he shall be punished by imprisonment and labor in the 
penitentiary for not less than one year nor longer than five years. 

The evidence was sufficient to support this verdict : 50 Ga. 152. 




Cobb. 808. 
Acts 1865-6, 
p. 1233. 



§324. (4492.) Compounding penalties. If any person, informing or 
prosecuting under pretense of any penal law, shall compound with 
the offender, or direct the suit or information to be discontinued, 
unless it be by leave of the court where the same is pending, he 
shall be guilty of a misdemeanor. 



ARTICLE 9. 



BARRATRY AND EMBRACERY. 



Cobb. 808. §325. (4501, 4502.) Barratry defined, punishment. Common bar- 
ratry is the offense of frequently exciting and stirring suits and 
quarrels between individuals, either at law or otherwise. Any per- 
son who shall be found and adjudged a common barrator, vexing 
others with unjust and vexatious suits, shall be guilty of a mis- 
demeanor. 

ActeimSj §326. Attorneys at law soliciting business. Any attorney at law 
who, by himself or agent, shall, orally or by writing, for a consider- 
ation afterwards to be charged or received, offer or tender to another 
person, without solicitation, his services in order to institute a suit 
or represent such person in the courts of this State or of the United 
States, in the enforcement or collection by law of any claim, debt, or 
demand of any such person against another, and shall suggest and 
urge the bringing of such suit, or who, without solicitation, shall 
seek out and propose to another person to present and urge, as an 
attorney at law, the collection of any claim, debt, or demand of such 
person against another, for the collection of which said attorney 
shall be entitled to demand or receive any fee or reward, shall be 
indicted for the crime of barratry. 



101 EIGHTH DIVISION.— ARTICLE 10. B27-881 

* 

Mutiny and Instigating mutiny, 



§827. (4502.) Attorneys at law, punishment. An attorney at law j££m2T' 
who shall be convicted of the crime of barratry tinder either of the p# *** 
preceding sections of this Article, shall be punished us for a misde- 
meanor, and shall also be disqualified from practicing his profession. 

§328. (4503.) Embracery. Embracery is an attempt, whether H uc- (; " M ''* A - 
cessful or not, to influence a jury corruptly to one side by promises, 

persuasions, entreaties, money, entertainments, and the Like. Every 
embracer who shall procure, or attempt to procure, a juror to take- 
money, gain, or profit, or shall corruptly influence, or attempt to 
influence, a juror, by persuasions, promises, entreaties, or by any 
other means, shall be punished by imprisonment and labor in the 
penitentiary for not less than one year nor longer than four years. 
And the juror convicted of taking money, gain, or profit, or of being 
corruptly influenced as aforesaid, shall be punished by confinement 
and labor in the penitentiary for not less than two years nor longer 
than five years, and shall be forever disqualified to act as a juror. 



ARTICLE 10 



MUTINY AND INSTIGATING MUTINY. 



§329. (4510.) Mutiny in penitentiary. If a prisoner in the peni- Cobb * 81 °- 
tentiary shall assail, oppose, or resist an officer of the penitentiary, 
or a member of the guard, with a weapon, or implement calculated to 
cause death or serious bodily injury, he shall be deemed guilty of 
mutiny, and shall be punished by an additional term of imprisonment 
and labor in the penitentiary, not less than two years nor longer than 
five years, to be computed from the expiration of the term of impris- 
onment and labor to which he shall have been previously sentenced. 

§330. (4511 . ) Instigating mutiny. If any person shall persuade, en- Cobb ' 81 °- 
tice or instigate a prisoner to mutiny, he shall be punished by con- 
finement and labor in the penitentiary for not less than two years 
nor longer than five years, to be computed, if a prisoner in the peni- 
tentiary, from the expiration of the term of imprisonment and labor 
for which he shall have been previously sentenced. 

§331. (4677.) Convict witnesses on trial for escapes and mutiny. On Cobb<S40 « 
the trial of a convict in the penitentiary for the crimes of escape or 
mutiny, any other prisoner or convict, not included in the same in- 
dictment, shall be a competent witness, and the infamy of his char- 
acter and of the crime of which he has been convicted shall be 
exceptions to his credit only. 



§§332-834 EIGHTH DIVISION.— ARTICLE 11. 102 



Appointment of peace-officers and detectives. 



ARTICLE 11. 

APPOINTMENT OF PEACE-OFFICERS AND DETECTIVES. 

ket £2P B0 ' 1, §332. Appointment of peace-officers and detectives. No sheriff , mayor, 
or other person authorized by law to appoint special deputy-sheriffs, 
constables, marshals, policemen, or other peace-officers, or detect- 
ives, to preserve the public peace or detect crime, shall appoint as 
such special deputy, special constable, marshal, policeman or other 
peace-officer or detective, any person who is not a citizen of this 
State, and no person shall assume or exercise such functions, powers, 
duties, or privileges incident and belonging to the office of special 
deputy-sheriff, special constable, marshal or policeman, or other peace- 
officer or detective, without first having received his appointment in 
writing from the lawfully constituted authorities of the State. 

Act i2o S9(> " 1 ' §333- Acting as peace-officer ivithout authority . Any person who shall, 
without authority, exercise or attempt to exercise the functions of, 
or hold himself out to any one as, a deputy-sheriff, marshal, police- 
man, constable or other peace-officer or detective, shall be guilty of a 
misdemeanor: Provided, that nothing in this Article shall be construed 
to interfere with the police powers granted to conductors of passenger- 
trains. Nor shall this and the preceding section apply in times of 
riot or unusual disturbance, or in other instances provided for by 
law. 

§334. (4509.) Other offenses against public justice. Any other of- 
fense against public justice, not in this Division provided for, shall 
be a misdemeanor. 



108 NINTH DIVISION.— ARTICLE 1. B85, 886 



Libel. 



NINTH DIVISION. 



Crimes Against the Public Peace and Tranquillity. 



ARTICLE 1 



LIBEL. 






§335. (4521.) Libel defined. A libel is a malicious defamation, Cobb ' 81 ' 2 - 
expressed either by printing, or writing, or signs, pictures or the 
like, tending to blacken the memory of one who is dead, or the hon- 
esty, virtue, integrity, or reputation of one who is alive, and thereby 
expose him to public hatred, contempt, or ridicule. Every person 
convicted of this offense, shall be punished as for a misdemeanor. 

It is libelous to charge a person with being a drunkard, a cuckold, and a 
tory : 6 Ga. 276. Or a thief : 61 Ga. 435. 

If a libel appears in a man's handwriting, and no other author is known, it 
turns the proof upon him : 6 Ga. 276. 

If it be placed where it might be seen and read, it is unnecessary either to 
aver or prove that it was seen or read : 6 Ga. 276. 

It is a good defense to show that it was published bona fide with the view of 
protecting legal rights, provided the limits necessary for protection be not 
exceeded : 4 Ga. 15. 

The libel should not be read to the jury, until defendant has cross-examined 
the witness proving its publication : 4 Ga. 14. 

An indictment which alleges that defendant published a libelous advertise- 
ment, though signed by another, is sufficiently certain without alleging that 
it was written by such third person : 4 Ga. 14. An allegation that it tended to 
blacken the honesty, etc., of G. is a sufficient allegation that it was "of and 
concerning" G. : 4 Ga. 14. Innuendoes are unnecessary if the libel import 
defamation, on its face, of a particular person : 6 Ga. 276. 

Words that imported malice and an intention to injure the business of a per- 
son : 77 Ga. 242. And that tended to expose a person to contempt or ridicule : 
76 Ga. 280. 

When conversations in the absence of defendant are admissible to prove the 
falsity of the charge : 77 Ga. 243. 

§336. (4522.) Printer a toitness. In all prosecutions under the pre- Cobb. ma 
ceding section, the printer or publisher of a newspaper, handbill, or 
other publication containing the offensive or criminal matter, shall 
be a competent witness; and if such printer or publisher shall refuse 
to testify in the cause, or to give up the real name of the author 
or person authorizing and causing the publication, so that he may 



§§837-840 



NINTH DIVISION.— ARTICLE 2. 



104 



Forcible entry and forcible detainer. 



be indicted, then such printer or publisher shall be deemed and con- 
sidered the author himself, and be indicted and punished as such ; 
and may, moreover, be punished for contempt of the court, as any- 
other witness refusing to testify. 
77 Ga. 243. 
Const. 812, §337. (4528.) The truth in evidence. In all cases of indictment for 
n rt p ar S °i' a libel, the person prosecuted shall be allowed to give the truth in evi- 
dence. 



ARTICLE 2. 



FORCIBLE ENTRY AND FORCIBLE DETAINER. 



Cobb. 812. 



Cobb, 812. 



Cobb, 812- 

813. 
Acts 1895, 

p. 63. 



§338. (4524.) Forcible entry. Forcible entry is the violently tak- 
ing possession of lands and tenements with menaces, force and arms, 
and without authority of law. 

To enter in defiance of the occupant, with such display of force as reason- 
ably to deter him from maintaining his possession, is forcible entry: 84 Ga. 
669; 4/196; 54/516. 

Menaces, as well as force and arms, make the offense: 74 Ga. 816. 

The public force of the State lawfully exercised cannot be the means of a 
criminal entry : 61 Ga. 496. A re-entry that was not criminal : 76 Ga. 25. 

A charge in the language of the section : 35 Ga. 100. 

§339. (4525.) Forcible detainer. Forcible detainer is the violently 
keeping possession of lands and tenements with menaces, force and 
arms, and without authority of law. 

Merely defending a suit at law for the possession, does not amount to a forci- 
ble detainer: 43 Ga. 438. 

§340. (4526.) Punishment for forcible entry or detainer . Any person 
who shall be guilty of a forcible entry, or a forcible detainer, or both, 
shall be punished as for a misdemeanor; and the court before whom 
the conviction takes place shall cause restitution of possession of the 
premises to be made to the party aggrieved. If the party forcibly 
detaining lands and tenements, or those under whom he claims, shall 
have been in peaceable possession of the same for the space of three 
years or more, immediately preceding the filing of the complaint, he 
shall not be subject to the penalties of this section, nor shall the 
restitution of possession be made. The only questions to be submit- 
ted to and determined by the jury in trials for forcible entry, or 
forcible detainer, shall be the possession and the force, without regard 
to the merits of the title on either side. 

There may be a conviction, under one indictment, for forcible entry and de- 
tainer, yet each may constitute a separate offense, and under an indictment for 
both, both branches must be proved : 74 Ga. 816. 



105 NINTH DIVISION.— ARTICLE 8. B41-848 



Carrying concealed weapons; carrying weapons to courts, election grounds, etc. ; etc. 

ARTICLE 8. 

CARRYING CONCEALED WEAPONS) CARRYING WEAPONS TO COURTS, ELEC- 
TION GROUNDS, ETC.; POINTING WEAPON AT ANOTHER) 
AND FURNISHING WEAPONS TO MINORS. 

§341. (4527.) Carrying concealed weapon*. Any person having or c i jJ*»* < *» 
carrying about his person, unless in an open manner and fully ex- A 5 t Jg MB "*» .i • 
posed to view, any pistol, dirk, sword in a cane, spear, bowie-knife, ymAtt™***^- 
or any other kind of knives manufactured and sold for the purpose 'f^- 6 f 

of offense and defense, shall be guilty of a misdemeanor. 

A law which merely inhibits the wearing of certain weapons in a concealed 
manner, is valid : 1 Ga. 243 ; 32/227. 

If the pistol was carried so exposed to view, that it could readily be seen 
and recognized as a pistol, by one having his person in view, he carried it, in 
legal contemplation, in an open manner: 32 Ga. 292, 225. Carrying it in a 
basket or bag upon the arm, and not for transportation alone, is a violation : 
86 Ga. 255. If concealed but for a moment, the offense is complete: 46 Ga. 
292; 75/882. Evidence that he carried it openly at another time, not in con- 
flict with testimony that he carried it concealed after the arrest : 61 Ga. 481. 
Not competent to prove his general habit to carry it openly : 36 Ga. 242. 
Carrying a pistol concealed for any purpose is an offense : 94 Ga. 774. 

That his life had been threatened, was no defense : 72 Ga. 211. 

Evidence as to his motive is inadmissible : 46 Ga. 292. 

That the pistol was disabled was no excuse: 61 Ga. 417 ; 94 Ga. 772. 

Positive and negative testimony : 12 Ga. 213. 

A fine of $200 with the alternative of twelve months in the chain-gang is not 
excessive : 65 Ga. 303. 

§342. (4528.) Carrying of deadly weapons at courts, etc. "Whoever Acts i87o, 
shall carry about his person any dirk, bowie-knife, pistol or revolver, i8;s-9,p.64. 
or any kind of deadly weapon, to a court of justice or an election 
ground or precinct, or any place of public worship, or any other pub- 
lic gathering in this State, except militia muster grounds, shall be 
punished as for a misdemeanor. This section shall not apply to a 
sheriff, deputy-sheriff, coroner, constable, marshal, policeman, or 
other arresting officer, or their posse, acting in the discharge of their 
official duties. 

Indictment sufficient which alleges that the carrying was "to and at a 
court of justice, then in session, in and for the 426th district, Georgia Militia" : 
53 Ga. 472. This section is constitutional : 53 Ga. 472. 

§343. (4528 a.) Pointing weapon at another . Any person who shall Acts isso-i, 
intentionally point or aim a gun or pistol, whether loaded or un- 
loaded, at another, not in a sham battle by the military, and not in 
self-defense, or in defense of habitation, property or person, or other 
instances standing upon like footing of reason and justice, shall be 
guilty of a misdemeanor 



B8344r-348 



NIKTH DIVISION.— ARTICLES 4,5. 



106 



Preservation of order at parades. Duelling. 



Arts 1876. 

p. 11a. 



§344. (4540b.) Furnishing weapons to miliars. If any person 
shall knowingly sell or furnish any minor with a pistol, dirk, bowie- 
knife, or Bword-cane, he shall be guilty of a misdemeanor. Nothing 
herein contained shall be construed as forbidding the furnishing of 
such weapons under circumstances justifying their use in defend- 
ing life, limb or property. 



Cobb. 743 
Acts 1895, 
p. 63. 



ARTICLE 4. 

PRESERVATION OF ORDER AT PARADES, 

A p Ct iio S7S ~ 9 ' §345. (1103y.) Commanding officer may arrest disturbers. The 
1895, p. 63. ffi cer commanding any detachment, company or battalion at any 
parade, or during the performance of any other duty ordered by 
proper authority, shall have authority to arrest and place under con- 
finement, during the continuance of such duty, any person who shall 
in any way willfully disturb or interrupt the peaceable and orderly 
proceedings of such detachment, company or battalion, and such per- 
son shall, moreover, be guilty of a misdemeanor. 

§346. (1142.) Interfering with officer or soldier on duty. If a by- 
stander, or person not connected with the military, shall molest, 
interrupt or insult any officer or soldier, while on duty, at any mus- 
ter or parade, he shall be guilty of a misdemeanor, and the com- 
manding officer, where such offense may happen, shall have power to 
confine such person under guard until the close of such parade or 
mustet. 

§347. (1144.) Commander may confine person disturbing military. 
The commander of companies, battalions, regiments, brigades or 
divisions, when on duty with their respective commands or parts 
thereof, shall have power, in their discretion, to arrest and confine, 
not exceeding the period for which they were on duty, any person 
w r ho shall, upon or near any parade ground, field, public highway, or 
any other place occupied by any portion of the military force under 
arms, by means of ludicrous disguise, dress, arms, and instruments, 
noise, or other means, disturb the peaceable and orderly proceedings 
of those under arms, and such offender shall be guilty of a misde- 
meanor. 



Acts 1895. 
p. 63. 



ARTICLE 5. 

DUELLING. 

Ar-t^ibU 1 * §348. (4516.) Duelling. If any person shall deliberately challenge, 

p. 63. n y WO rd or writing, the person of another, to fight with sword, pistol, 

or other deadly weapon, or if any person so challenged shall accept 



107 NINTH DIVISION.— ARTICLE 6. B49^864 

I'd lawful assemblies, riots, and affrays. 



the challenge, the person ho giving, or sending, or accepting such 
challenge shall be punished by imprisonment and Labor in the peni- 
tentiary for not less than one year nor longer than two years. 

The gravamen is consent; if that took place in this State, the offense ifl com- 
plete, and it matters not where the duel was fought : 58 Ga. 332. 

§349. (4517.) Seconds , same punishment . If any person shall know- 0obb,sn. 
ingly and willfully carry and deliver any written or printed chal- 
lenge, or verbally deliver any message or challenge to another, to 
fight with sword, pistol, or other deadly weapon, or shall consent to 
be a second in any such duel or combat, he shall be punished as pre- 
scribed in the preceding section. 

§350. (4518.) Fighting a duel. If any person shall be engaged in oobb.sn. 
the act of fighting a duel, with sword, pistol or other deadly weapon, 
either as principal or second, he shall be punished by imprisonment 
and labor in the penitentiary for not less than four years nor longer 
than eight years: Provided, that if death should ensue from such 
duel, then all the parties, both principals and seconds, shall be guilty 
of murder, and suffer the punishment of death, but the punishment 
may be commuted in conformity with the provisions of section 63 
of this Code. 

§351. (4519.) Officers knowing and not preventing duels. If any jus- Cobb ' 8n - 
tice, or other public officer bound to preserve the public peace, shall 
have knowledge of an intention in any person or persons to fight 
with any deadly weapon, and shall not use and exert his official 
authority to arrest the parties and prevent the duel, by binding them 
over to keep the peace toward each other, such officer shall, on con- 
viction, be dismissed from office. 

§352. (4520.) Proclaiming as a " coward ," etc., in print. If any Cobb » 812 * 
person shall, in any newspaper, or handbill, written or printed, pub- 
lish or proclaim any other person as a coward, or use any other 
opprobrious and abusive language for not accepting a challenge or 
fighting a duel, he shall be guilty of a misdemeanor. 



ARTICLE 6. 

UNLAWFUL ASSEMBLIES, RIOTS, AND AFFRAYS. 

§353. (4513.) Unlawful assemblies. If two or more persons assem- Cobb ' 81 °- 
ble for the purpose of disturbing the public peace, or committing 
any unlawful act, and do not disperse on being commanded to do so 
by a judge, justice, sheriff, constable, coroner, or other peace-officer, 
such persons shall be guilty of a misdemeanor. 

§354. (4514.) Riot. If two or more persons do an unlawful act ^SsiaEi 
of violence, or any other act in a violent and tumultuous man- p* 233 - 



S§855, 856 NINTH DIVISION.— ARTICLE 7. 108 



Mob violence. 



aer, they shall be guilty of a riot, and be punished as for a misde- 
meanor. 

A riot is but one offense. It may be perpetrated by doing an unlawful act 
of violence, or any other act in a violent and tumultuous manner. The for- 
mer or higher offense includes the latter or less offense, and so the jury may 
find according to the proof: 20 Ga. 841 ; 51 Ga. 374; 93/207. 

It is a joint offense for which one person alone cannot be indicted: 84 Ga. 
680. There must be the joint action of two or more persons. If two men fall 
to lighting each other, the offense cannot amount to a riot: 22 Ga. 488. There 
must be as many as two persons acting in execution of a common intent: 
30 Ga. 27; 84/680; 93/207; 78/316; 73/816; 64/361. 

Not necessary that the act done should be in itself unlawful. If it be done 
in a violent and tumultuous manner, the offense is complete: 28 Ga. 193. 

A violent assault or attempt to commit a violent injury upon the person of 
another; is an illegal act of violence within the meaning of this section: 51 Ga. 
374; 93/207. 

Armed men who invade a citizen's premises to make a search, may be guilty 
even though they may be treated hospitably to get them off: 60 Ga. 126. 

"Where a number of persons endeavored to release a prisoner: 78 Ga. 258. 

Merely making a noise, or behaving tumultuously, will not alone constitute 
a riot, in the absence of violence: 74 Ga. 833. 

It does not matter that there were two sets of rioters and that the convicted 
set got the worst of it : 66 Ga. 656. 

Severance is within the discretion of the court: 34 Ga. 10. If they be 
tried separately, the acquittal of one does not operate as an acquittal of the 
other : 51 Ga. 375. The verdict may be set aside as to two and left to stand as to 
two: 87 Ga. 569. 

A charge defining riot in the language of this section, in lieu of the com- 
mon law definition, is not error: 66 Ga. 656. 

Ac!s b i865-6 §355. (4515.) Affrays. An affray is the fighting of two or more 
p. 233. persons in some public place, to the terror of the citizens and dis- 
turbance of the public tranquillity. Persons so offending shall be 
guilty of a misdemeanor; and it shall be considered a great aggra- 
vation of this offense if any contempt or disobedience of the magis- 
trate, or other peace-officer commanding the peace, shall be proved. 

Words alone will not constitute this offense, but words accompanied by 
acts, such as drawing knives, etc., will: 13 Ga. 322. 

One who aids, assists and abets, is a principal : 13 Ga. 322. 

When two are indicted, both must be convicted or neither: 13 Ga. 322. 



ARTICLE 7. 

MOB VIOLENCE. 



A ? t i28 80 '' §^56. Duty of officer knowing of attempted mob violence upon citizen. 
Whenever any officer, charged with the duty of preserving the peace 
and executing the lawful warrants of this State, has knowledge of 
any violence attempted to be perpetrated upon any citizen of this 
State by mob violence and without due authority of law, it shall be 



109 NINTH DIVISION.— ARTICLE 8. B57-80O 

Invasion. 

his duty to summoiiH to his assistance, either in writing or verbally, 
when necessary, any of the citizens of the neighborhood or county, 

whose duty it shall be to prevent such mob violence, if in their 
power to prevent it, and they shall use every means in I heir power 
to prevent it. It shall be the duty of the sheriff or other officer 

charged with this duty, and of the posse summoned as aforesaid to 
the end of suppressing a riot or preventing mob violence, to arrest 
the persons engaged in the same and place them in the common jail 
of the county, or other place of safety, to be dealt with as the Law 

directs; and any person so engaged in mobbing or lynching any cii i- 
zen of this State without due process of law shall be punished by 
imprisonment in the penitentiary for not less than one nor longer 
than twenty years, and should death result from such mob violence, 
then the person causing said death shall be subject to indictment 
and trial for the offense of murder. 

§357. Failure of officer to try to suppress mob violence. Any sheriff p. 128. 
or other arresting officer having knowledge of a meeting or assem- 
bling together of any citizens of this State for the purposes set forth 
in the preceding section, and failing to attempt in good faith to sup- 
press the same, either by himself or by summoning a posse as pre- 
scribed in said section, shall be guilty of a misdemeanor. 

§358. Failure to assist officer by person summoned. Any person thus Act ^ 1 8 893 - 
summoned, who shall fail or refuse to respond to the officer's sum- 
mons, and assist in suppressing any mob violence being committed, 
or about to be committed as aforesaid (unless such person is physic- 
ally unable to respond), shall be guilty of a misdemeanor. 

§359. Persons summoned to bring firearms. Whenever any citizen Actsi893. 
of this State shall be summoned as aforesaid, it shall be the duty of 
the officer so summoning to notify such person to bring with him 
such firearms or other weapons as are necessary to be used in sup- 
pressing such mob violence, and it shall be the duty of such person 
to respond promptly with such arms or weapons as he maybe able to 
procure; and the arresting officer or his posse may, if the exigency of 
the case require, in order to prevent human life from being taken by 
mob violence, take the life of any person attempting mob violence, 
in order to prevent it: Provided, life shall not be taken, unless it be 
necessary to save the life of the person being mobbed, or to protect 
the lives of such arresting officer or his posse. 



ARTICLE 8. 



INVASION. 



§360. (1103z.) Governor may use troops against invasion, etc. In Actsissi-5. 
case of any invasion, rebellion, insurrection, or probable prospect 



£§361-363 NINTH DIVISION.— ARTICLE 8. 110 



Invasion. 



thereof, the Governor shall have authority to order into the service 
of the State Buch portion of the volunteer forces as in his judgment 
the occasion shall require, and to detail or appoint to command them 
the ranking officer so ordered, or any other officer of superior rank 
and such officers for their payment and supply as he may find 
necessary. 

^Sfre^' S^f- Application to Governor for troops. Whenever any judge of 
the superior court, city court judge, sheriff or mayor of any incor- 
porated city, town or village in this State shall have reasonable 
cause to apprehend the outbreak of any riot, rout, tumult, insurrec- 
tion, mob, or combination to oppose the enforcement of the laws by 
force or violence, within the jurisdiction in which such officer is by 
law a conservator of the peace, which cannot be speedily suppressed 
or effectually prevented by the ordinary posse comitatus and peace- 
officers, such judge, sheriff or mayor shall forthwith report the facts 
and circumstances, in writing, to the Governor, and request him to 
order out such portion of the volunteer forces of this State as may be 
necessary to enforce the laws and preserve the peace; and thereupon 
the Governor shall, if he deem such apprehension well founded, 
order out, or direct to be held in readiness, such portion of the vol- 
unteer forces as he may deem advisable for the proper enforcement 
of the law, and he may direct the officer in command of the trooj^s 
to report to the officer making such application, or any one or more 
of them, and to obey the orders of such civil officer, or, if the Gov- 
ernor deem it advisable, may especially instruct the officer in com- 
mand of such troops as to the duties required of them, and direct 
their execution under the immediate control of the Governor. 

Acts^i884-5, §362. Mayor may call out troops in emergency. Whenever any riot, 
outbreak, tumult, mob or rout shall occur or be imminent, under 
such circumstances that timely application cannot be made to the 
Governor, and action had thereon by him, the mayor of any city, 
town or village in which any of said volunteer forces are located, if 
he ascertains or has good reason to believe that the ordinary posse 
comitatus or civil power of the county, city, town or village where 
such violation of the laws and peace of this State occurs or appears 
imminent, are or would be unable to promptly suppress or prevent the 
same, may, without first making application to the Governor, direct 
the commander of each company, or part of a company of said vol- 
unteer forces, in the county or said city, town or village where such 
lawlessness exists or is threatened, to call out and report with his 
command to such civil officer, to enforce the laws and preserve the 
peace ; and such commander and all persons composing such com- 
mand shall obey such order. 

A t> '%}^ A ' : '' §363. Officer may require written orders of magistrate. Any officer 
whose command is called out under the provisions of this Article, 



ill NINTH DIVISION.— ARTICLE 8. B64-807 

Invasion. 

and reporting to any civil magistrate, may require such magistrate 
to make such order in writing, and prescribe therein the outline of 

the duties required of him and his command, and may decline to 
obey such orders until put in writing, and while such commanding 
officer must obey all lawful commands of such magistrate, such 
military officer may use his discretion as to Hie manner of currying 
out such orders' so long as he complies with their spirit. 

§364. Magistrate to report to Governor. Whenever any troops are A J '% 1H * 4 ~ 5 ' 
ordered out by a civil magistrate under the provisions of 1 his An icle, 
without first obtaining an order from the Governor, the civil magis- 
trate and the commander of such troops shall report the facts as 
soon as practicable to the Governor, and in all cases the Governor 
may direct such troops to perform their duties under his immediate 
orders. 

§365. Command to disperse before using force. Before using any mili- 4^1884-6, 
tary force in the dispersion of any riot, rout, tumult, mob or other 
unlawful assembly or combination mentioned in this Article, the 
civil officer calling out such military force, or some other con- 
servator of the peace, or if none be present, then the officer in 
command of the troops, or some person by him deputed, shall com- 
mand the persons composing such riotous, tumultuous or unlawful 
assemblage or mob to disperse and retire peaceably to their respec- 
tive abodes and businesses: Provided, that in no case shall it be 
necessary to use any set or particular form of words in ordering such 
dispersion, nor shall any such command be necessary where the offi- 
cer or person in order to give it would necessarily be put in imminent 
danger of loss of life, or great bodily harm, or where such unlawful 
assemblage or mob is engaged in the commission of any forcible or 
atrocious felony, or in assaulting or attacking any civil officer or 
person lawfully called to aid him in the preservation of the peace, 
or is otherwise engaged in actual violence to persons or property. 

§366. Failing to disperse when ordered. Any person composing or Act | 3 issi ' 5 ' 
taking part in any riot, rout, tumult, mob or lawless combination 
or assembly mentioned in this Article, who, after being duly com- 
manded to disperse, as hereinbefore provided, willfully and inten- 
tionally fails to do so as soon as practicable, shall be imprisoned in 
the penitentiary not less than one nor more than two years. 

§367. Arrest or dispersion of rioters. When any person or persons ^a) 1884 " 5 ' 
composing or taking part, or about to take part, in any riot, mob, 
rout, tumult or unlawful combination or assembly mentioned in this 
Article, shall have been duly commanded to disperse, or where the 
circumstances are such that no such command is requisite, under the 
provisions of this Article, the civil officer to whom such military 
force is ordered to report, or, if there be no civil officer present, then , 
such military officer (or if such command is acting under tha*fke<$£ N « v" -■ 



v 



LIBRARIES i 



§§868, 869 NINTH DIVISION.— ARTICLE 8. 112 

Invasion. 

order of the Governor, then Buch officer within the limits provided 
in his instructions) shall take such steps and make such disposition 
for the arrest, dispersing or quelling of the persons so composing or 
taking part therein as may be deemed requisite to that end, and if, 
in doing so, any person is killed, wounded, or otherwise injured, or 
a iiv property injured or destroyed by the civil officer, or officer or 
member of the volunteer forces, or other person lawfully aiding 
them, he shall be held guiltless in all cases, unless it be made to ap- 
pear that such killing, wounding or injury to persons, or injury or 
destruction to property, was wanton or malicious, without seeming" 
necessity or excuse therefor. 

Acts 18W-5, §868. Duty of citizens when shot is fired, etc. Whenever any shot is 
fired, or missile thrown at or against, or upon any body of said vol- 
unteer forces, or upon any officer or member thereof assembling or 
assembled for the performance of any duty under the provisions of 
this Article, every person in the assemblage from, which the shot is 
fired, or missile thrown, shall immediately disperse and retire there- 
from without awaiting any order to do so, and any person knowing 
or having reason to believe that a shot has been fired or missile 
thrown, as aforesaid, from any assemblage of which such person 
forms a part, or with which he is present, and failing immediately, 
without lawful excuse, to retire from such assemblage, shall be im- 
prisoned in the county jail for not less than one month nor more 
than one year; and any person so remaining in such assemblage after 
being duly commanded to disperse, shall be imprisoned in the peni- 
tentiary for not less than one nor more than two years. 

Acts 1884-5, §369. Passage and occupancy of streets in case of riot. Whenever any 
1895, p. 68. rout, riot or mob has occurred or is progressing, or so imminent that 
any portion of the volunteer forces is or has been called out for the 
performance of any duty under the provisions of this Article, the 
civil officer under whose orders the volunteer forces are acting, or the 
commanding officer of such forces, may, if it be deemed advisable 
in subduing or preventing such mob or riot, or the outbreak thereof, 
prohibit all persons from occupying or passing on any street, road 
or place, in the vicinity of the rout, mob or riot, or the place where 
the same is threatened, or where the said forces may be for the time 
being, and otherwise regulate passage and occupancy of such streets 
and places. Any person, after being duly informed of such prohi- 
bition or regulations, who willfully and intentionally, without any 
lawful excuse, attempts to go or remain on such street, road or 
place, and fails to depart after being warned to do so, is guilty 
of a misdemeanor; and in such case the officer commanding troops 
shall forthwith arrest persons thus offending and turn them over 
to some civil magistrate. 



118 NINTH DIVISION.— ARTICLE 8. §§870-874 

Invasion. 

§870. Protection of prisoners. The commanding officer of any body^^j* 1 
of said volunteer forces guarding any jail, public building or other "»#*••»« 

place, or escorting any prisoner, may, if he deem it advisable, pre- 
scribe a reasonable distance in the vicinity of such jail, public build- 
ing or other place, or escort of such prisoner, within which persons 
shall not come; and any person knowingly and willfully, without 
lawful excuse, coming within said limits, without the permission of 
such officer, and refusing to depart after being ordered to do so, 
shall be guilty of a misdemeanor; and any person so coming and re- 
maining in said limits in the night-time shall be punished by im- 
prisonment in the penitentiary for not less than one year nor men; 
than two years; and in either case the officer commanding such 
troops shall forthwith arrest persons thus offending and turn 
them over to some civil magistrate. 

§371. Change of venue, where officer, etc., indicted. Any civil Act * 2 1884 " 5 ' 
officer, military officer or member of the volunteer forces, or any 
person lawfully aiding them in the performance of any duty required 
under the provisions of this Article, if indicted or sued for any injury 
to person or property in endeavoring to perform such duties, 
shall have the right, and it is hereby made the duty of the court 
in which such indictment or suit is pending, upon the application of 
any person thus indicted or sued, to transfer the trial of the indict- 
ment or suit to some county free from exception, other than that in 
which the indictment was found or injury done. 

§372. Assaulting troops. Any person who unlawfully assaults, or Ac ^ 1884 ~ 5, 
fires or throws any missile at, against or upon any member or body 
of the volunteer forces, or civil officer, or other person lawfully aid- 
ing them, when assembling or assembled for the purpose of perform- 
ing any duty under the provisions of this Article, shall be guilty of 
a misdemeanor. 

§373. Repelling assaidt immediately . If any portion of the volun- Ac ^ 1884 " 5 ' 
teer forces, or other persons lawfully aiding them in the performance 
of any duty under the provisions of this Article, are assaulted, at- 
tacked, or in imminent danger thereof, the commanding officer of 
such troops need not await any orders from any civil magistrate, 
but may at once proceed to quell such attack, and take all other 
needful steps for the safety of his command. 

§374. Certain bodies may not drill, etc., loithout license. No body of :^ c gj? 188 *" 5 » 
men other than the volunteer forces of this State, and the troops 1895> p - "■ 
of the United States and bodies of police, shall associate themselves 
together as a military company or organization, or drill or parade 
with arms in any city or town in this State, without the license of 
the Governor, which license may at any time be revoked. Students 
in educational institutions where military science is part of the 
course of instruction may, with the consent of the Governor, drill 



|375 NINTH DIVISION.— ARTICLE 9. 114 

Other offenses against public peace. 

and parade with arms in public under the superintendence of their 
instructors; and benevolent, secret or social organizations may wear 
swords and parade with side-arms. Whoever offends a-gainst the 
provisions of this section, or belongs to or parades with any such 
unauthorized body of men with arms, shall be punished as for a 
misdemeanor. 






ARTICLE 9. 

OTHER OFFENSES AGAINST PUBLIC PEACE. 



Cobb. 818. §375. (4529.) Other offenses against public peace. All other offenses 
against the public peace, not herein provided for, are misdemeanors. 



L15 TENTH DIVISION.— ARTICLE I. 876-878 



Bigamy. 



TENTH DIVISION. 



Offenses Against Public Morality and Decency, Public IIkalth, 

Public Safety and Convenience, Public Trade, 

Public Policy, Suffrage, Public Police. 



ARTICLE 1. 



BIGAMY. 



§376. (4530.) Polygamy and bigamy. Polygamy, or bigamy, con- cwb. su. 
sists in knowingly having a plurality of husbands or wives at the 
same time. 

§377. (4531.) Punishment, if before married. If any person being Cobb, su. 
married shall marry another person, the lawful husband or wife be- 
ing alive, and knowing that such lawful husband or wife is living, 
such person so offending shall be punished by confinement at labor 
in the penitentiary for not less than two years nor longer than four 
years, and the second marriage shall be void. 

The admission of defendant as to the fact of his marriage is sufficient: 11 Ga. 
54. Proof of the marriage in fact is sufficient without the production of the 
license, or evidence that the person executing it was an ordained minister: 
50 Ga. 150 ; 88/556. The proof may be made by the record thereof, the admis- 
sion of the defendant, by some one who saw the ceremony performed, or by 
such evidence as will clearly establish it. General reputation is not sufficient : 
53 Ga. 575. It maybe shown by proof of marriage in fact in another State, 
followed by cohabitation in that State and the birth of a child : 88 Ga. 552. 

Cohabitation with the second woman is not necessary to constitute the crime : 
84 Ga. 467. 

The indictment must allege a prior lawful marriage : 40 Ga. 244. Under a 

charge that his wife was "one Nelms, whose name was not known to the 

grand jurors" the true name was proven: 84 Ga. 466. One maybe princi- 
pal in the second degree who is incapable of committing it in the first degree : 
34 Ga. 275. 

The second marriage is void and the woman is a competent witness against 
the bigamist : 61 Ga. 305. 

§378. (4531 . ) Exceptions. — Five years absence. Five years absence of Cobb. si-t. 
the husband or wife, and no information of the fate of such hus- 
band or wife, shall be sufficient cause of acquittal of the person 
indicted under the preceding section; and the issue of such second 
marriage, born before the commencement of any prosecution for 



BS37&-881 



TENTH DIVISION.— ARTICLES 2, 3. 



116 



Cobb. Mi. 



tncest, Adulter; and fornication. 



polygamy, or within the ordinary time of gestation thereafter, shall, 
notwithstanding the invalidity of such marriage, be considered as 
legitimate. 

^70. (4532.) Punishment, if before unmarried. If any unmarried 
man or woman shall knowingly marry the wife or husband of an- 
other, such man or woman shall be punished by imprisonment and 
labor in the penitentiary for not less than one year nor longer than 
three years. 



Cobb. 814. 
Acts 188(5, 
p. 80. 



ARTICLE 2. 



INCEST. 



§380. (4533.) Incest. If any person shall commit incestuous 
fornication or adultery, or intermarry within the levitical degrees 
of consanguinity, or within any of the relationships, by affinity, 
enumerated in section 2413 of the Civil Code, such person shall be 
punished by imprisonment and labor in the penitentiary for not less 
than one nor longer than three years, and such marriage shall be 
void. 

If a married man have intercourse with his unmarried daughter, he is guilty 
of incestuous adultery and she of incestuous fornication : 11 Ga. 53. 

Marriage of defendant, the sexual intercourse, and the relation of the par- 
ties within the levitical degrees, constitute incestuous adultery : 11 Ga. 53. 

Incestuous fornication is not a joint offense, and one person may be indicted 
and found guilty thereof: 44 Ga. 209. 

In this crime there may be ascertain force or power exerted, resulting from 
age, relationship, or circumstances of the parties, which overcomes the objec- 
tions of the female, without making the crime of rape : 68 Ga. 672. 



Cobb, 814- 

615. 



ARTICLE 3. 



ADULTERY AND FORNICATION. 



§381. (4534.) Adultery and fornication. Any man and woman who 
shall live together in a state of adultery or fornication, or of adul- 
tery and fornication, or who shall otherwise commit adultery or 
fornication, or adultery and fornication, shall be severally indicted, 
and shall be severally punished as for a misdemeanor; but it shall, 
at any time, be within the power of the parties to prevent or suspend 
the prosecution and the punishment by marriage, if such marriage 
can be legally solemnized. 

The marriage of defendant could be proved by his own confession, or that 
he was living with another woman who was reputed to be his wife, or if sepa- 
rated from her, that they had cohabited together as man and wife : 62 Ga. 407 ; 
11/54. That lie is a married man by reputation, and lias a family of children, 
is not admissible: 62 Ga. 407. 



117 TENTH DIVISION.— ARTICLE 4. B82-886 

Sodomy and bestiality. 

The crime may be proved by circumstances: 20 Ga. 488; 28/579; 44/480; 
05/474. That defendant was on the bed with the girl in the night, for twenty 
minutes, was sufficient corroboration of his confession : HI Ga. 196. The evi- 
dence must be sufficient to exclude every other reasonable hypothesis but that 
of guilt — affording a strong presumption against the defendant is not suffi- 
cient: 84 Ga. 461. 

The woman's declaration that she had heard her husband was dead, was not 
admissible: 86 Ga. 548. Persons living in a state of fornication are compe- 
tent witnesses for and against each other: 26 Ga. 162. Husband not a com- 
petent witness on the trial of a man for adultery and fornication with his wife: 
94 Ga. 587. That accused did not produce or account for a witness who cer- 
tainly knew whether the charge was true, may have had weight with the jury : 
81 Ga. 140. When defendant sets up incapacity to commit the offense, the 
burden is on him to make it appear: 81 Ga. 144. The origin of his oppor- 
tunity and the res gestse of its continuance may be shown : 81 Ga. 144. Evi- 
dence not sufficient here : 74 Ga. 376 ; 92/458. This was : 81 Ga. 458. 

These offenses are joint — the remedy is several. An indictment cannot be 
found jointly against both: 18 Ga. 264; 41/582. A charge of fornication, in 
that an unmarried woman had intercourse with a married man, was bad on 
demurrer: 44 Ga. 344. Adultery and fornication committed by a single act 
or by living in that state, and both ways, may be alleged in one count : 91 Ga. 
126. There were four counts, and the State was forced to elect: 91 Ga. 8. 

There may be a conviction for adultery and fornication under an indictment 
for seduction : 48 Ga. 193. And for fornication : 54 Ga. 389. Fornication is 
not included in rape: 60 Ga. 381. " Guilty of adultery" is a good verdict on 
an indictment for adultery and fornication, specifying that the accused was 
married : 33 Ga. (Supplement) 56. And where the offense was denominated 
" seduction": 95 Ga. 351. 

A fine of $100 or the alternative of five months' work, is not excessive: 
81 Ga. 140. 



ARTICLE 4. 

SODOMY AND BESTIALITY. 

(4352.) Sodomy. Sodomy is the carnal knowledge and con- Cobb. :s:. 
nection against the order of nature, by man with man, or in the 
same unnatural manner with woman. 

Verdict not warranted: 94 Ga. 593. 

§383. (4353.) Penitentiary for life. The punishment of sodomy Cobb. :s;. 
shall be imprisonment at labor in the penitentiary for and during 
the natural life of the person convicted. 

§384. (4354.) Bestiality. Bestiality is the carnal knowledge a nd Cobb,TS7 - 
connection against the order of nature, by man or woman in any 
manner with a beast. 

Penetration may be proved by circumstances : 73 Ga. 76. 

§385. (4355.) Punishment. The punishment of bestiality shall be S^isSi 
imprisonment in the penitentiary for not less than five years nor p- 74 - 
more than twenty years. 



g§886*888 TENTH DIVISION.— ARTICLE 5. 118 

Seduction. 

Cobv. 181 §886. (4850.) Attempt. An attempt to commit sodomy or bes- 
tiality shall be a misdemeanor. 



ARTICLE 5. 

SEDUCTION. 



Actsisss, §387. (4371.) Seduction, and punishment. If any person shall, by 
persuasion and promises of marriage or other false and fraudulent 
means, seduce a virtuous unmarried female and induce her to yield 
to his lustful embraces and allow him to have carnal knowledge of 
her, he shall be punished by imprisonment and labor in the peniten- 
tiary for not less than two nor longer than twenty years. 

. The legal definition of a "virtuous unmarried female" is matter of law for 
the court: 91 Ga. 255. 

The presumption of law is that the female alleged to have been seduced 
was virtuous, and that presumption remains until removed by proof. She must 
have had personal chastity. If she, at the time of the alleged seduction, had 
never had unlawful sexual intercourse with man, she was a virtuous female 
within the meaning of the law: 48 Ga. 193; 85/407; 91/255. Every virgin is 
virtuous ; and as a general proposition, a woman who, out of wedlock and with 
her own consent, has parted with her virginity, is not virtuous: 85 Ga. 383; 
90/628. Conduct showing a debauched mind may be considered by the jury in 
determining whether she had parted with her virginity before the alleged 
seduction. Want of moral chastity may be regarded on the question whether 
the woman was really seduced. Jury may apply their knowledge of human 
nature and the customs of society upon the question whether a woman was 
virtuous according to the legal standard: 85 Ga. 383; 90/628. 

If there be a virtuous engagement to marry, seduction may be accom- 
plished without other persuasion than that which is implied in proposing the 
intercourse and repeating the promise : 58 Ga. 328 ; 85/412 ; 90/628. Intercourse 
brought about by promise of marriage only, not seduction : 85 Ga. 383 ; 90/628. 

This charge cannot be sustained by showing rape was committed — some 
slight resistance does not make rape : 90 Ga. 616. 

Acts and sayings between the parties, bearing upon the principal fact, before, 
at the time of, and after the seduction, admissible: 48 Ga. 193; 91/250. 

Seduction by a pastor, and preceptor in school, and a married man : 48 Ga. 
192; 74/433; 95/355. 

Proof of illicit intercourse with other men, after the seduction, not admis- 
sible : 48 Ga. 291; 34/1. 

Character of female not competent, unless in rebuttal of testimony impeach- 
ing her chastity, or veracity as a witness : 89 Ga. 396. Cannot be done by hear- 
say : 91 Ga. 254. General character not proved by particular statements made 
by relatives: 91 Ga. 254. Proof of good character of girl's parents, not com- 
petent: 89 Ga. 396. 

Seduction embraces fornication and adultery: 48 Ga. 193; 74/433; 54/389; 
95/356. 

Act? 1803, §388. (4371.) Prosecution may be stopped by marriage. A prosecu- 
tion under the preceding section may be stopped at any time by the 
marriage of the parties, or a bona fide and continuing offer to marry 



119 TENTH DIVISION.— ARTICLE 6. 090 



Keeping open tippling-houses on the Sabbath, Lewdness, lewd bouse*, disorderly houses, ■ 

on part of the seducer: Provided, that the seducer shall at the time /) Jaj £ ^ 1 
of obtaining the marriage license from the ordinary of the comity ^ 7 

of the female's residence, give a good and sufficient bond in such 
sum as said ordinary may deem reasonable and just, taking into 
consideration the condition of the parties, payable to said ordinary 
and his successors in office, and conditioned for 1 lie- maintenance arid 
support of the female and her child or children, if any, for the 
period of five years. If the defendant is unable to give the bond, 
the prosecution shall not be at an end until he shall live with the 
female, in good faith, for five years. 

§389. Filing the bond and suit thereon. The bond, when so executed ^SJ 888 ' 
and approved by the ordinary, shall be filed in his office and recorded 
on his minutes, and upon the failure of the defendant to comply 
with its terms, suit may be brought thereon. 



ARTICLE 6. 



KEEPING OPEN TIPPLING-HOUSES ON THE SABBATH, LEWDNESS, LEWD 
HOUSES, DISORDERLY HOUSES, AND OPIUM JOINTS. 

§390. (4585.) Lewdness, and tippling-houses. Any person who shall 2ct?i8$5-6, 
be guilty of open lewdness, or any notorious act of public indecency, p- 233 - 
tending to debauch the morals, or of keeping open tippling-houses 
on the Sabbath day, or Sabbath night, shall be guilty of a misde- 
meanor. 

To keep open a tippling-house on the Sabbath is indictable without proof that 
liquor was sold, or that it w T as a nuisance, or hurtful to the neighborhood or to 
the religion or morals thereof : 3 Ga. 18 ; 34/457 ; 48/510. 

A sale of liquor not necessary to constitute a tippling-house : 63 Ga. 318. It 
makes no difference what the place may be called, if it be a place where liquor 
is retailed and tippled on the Sabbath, with a door for entrance, so that any. 
body can push it open, enter and drink, the proprietor is guilty of this offense : 
69 Ga. 54. If the whole house is used for tippling purposes, it must all be 
closed ; if a part only is so used, that part must be closed : 65 Ga. 568. When 
selling domestic wine in a building within the curtilage of the dwelling, con- 
stitutes a tippling-house : 92 Ga. 456. A bar and restaurant with an open door : 
88 Ga. 441 ; 92/455. Albany Glee Club : 63 Ga, 318. Whether it was a tippling- 
house was question for the jury: 19 Ga. 426. 

If the owner keeps it open but for a moment, it is a violation: 78 Ga. 110: 
92/454. 

If defendant sets up that it was the act of his clerk, he must show that it 
was without his knowledge and that he gave no consent, express or implied : 
77 Ga, 735. Whenever it is shown that the house was a tippling-house, that he 
was the owner, and that it w r as kept open, the offense is made out ; if it was 
kept open against his consent, express or implied, or if it was opened for any 
purpose that the law would excuse or justify, he should be acquitted : 74 Ga. 
82 ; 75/862. It matters not for what purpose the house was kept open : 77 Ga. 
735. The purposes that the law would excuse or justify are. the breaking out 



$§391-898 TENTH DIVISION.— ARTICLE 6. 120 



Keeping open tippling-houses on the Sabbath, lewdness, lewd houses, disorderly houses, etc. 

of a fire on the premises, or in the vicinity, or if one on the spot, or in the 
vicinity, should be stricken down with sudden illness, and the house should be 
opened to furnish liquor as a remedy: 78 Ga. 106. 

If it was kept open upon any Sabbath day within two years prior to the find- 
ing of the indictment, he would be guilty: 92 Ga. 454. If the indictment 
charges the offense on the 4th day of April, 1873, being Sunday, when in fact, the 
4th day Was Friday, it is bad : 51 Ga. 426. 

Unnecessary to state the particular place in the county : 69 Ga. 54. 

A conviction before a city council is no bar to an indictment : 53 Ga. 75 ; 
68/295 ; but a conviction in the city court is : 53 Ga. 448. 

This offense is classed with open lewdness and notorious acts of public inde- 
cency, and courts in administering it will not be astute in shielding violators 
of the law by resorting to niceties of verbal criticism : 74 Ga. 82. 

A fine of $300 or six months' work is not severe : 69 Ga. 55. 

Acts i865-'e. §391. (4536.) Lewd houses. If any person shall maintain and keep 
a lewd house, or place for the practice of fornication or adultery, 
either by himself, or others, he shall be guilty of a misdemeanor. 

If open and notorious lewdness is practiced therein by defendant's wife and 
daughters, in his presence, with his consent, or without his dissent, he is 
guilty : 46 Ga. 26 ; 57/390. 

That defendant contributed to and aided directly or indirectly in main- 
taining and keeping the house, is sufficient: 53 Ga. 241. Need not be shown 
that it was kept for profit : 46 Ga. 26. Tax digest admissible to show title in 
defendant : 76 Ga. 82. 

Evidence of the general reputation for chastity of the women at the house, 
admissible: 57 Ga. 390. And the reputation of the house may be shown, and 
the proof may run back more than two years : 76 Ga. 82. 

A charge that defendant maintained and kept a lewd house was sufficient : 
53 Ga. 241. Judgment not arrested for failure to charge that house was kept 
for purposes of fornication : 60 Ga. 657. 

A fine of $300 or six months' work, not excessive : 57 Ga. 390. 

Act?i865-6 §392. (4537.) Disorderly houses. Any person who shall keep and 
p- 238 - maintain, either by himself, or others, a common, ill-governed and 
disorderly house, to the encouragement of idleness, gaming, drinking, 
or other misbehavior, or to the common disturbance of the neighbor- 
hood or orderly citizens, shall be guilty of a misdemeanor. 

The noises, etc., must be ordinary and usual or common, and the disturbance 
must be general, and not of only one person in a thickly settled neighborhood : 
36 Ga. 280. 

As one act among others going to sustain the charge, a policeman was 
allowed to prove that defendant secreted the person he was seeking to arrest 
in a closet: 54 Ga. 217. 



Acts 1895, 
p. 66. 



§393. Opium joints prohibited. Any person who shall keep, set up, 
maintain, or open, any house, room, or place of any description, for 
the smoking of opium or any preparation thereof, shall be guilty of 
a misdemeanor. 



12] TENTH DIVISION.— ARTICLE 7. 894-897 



Obscene pictures, and abusl re and vulgar language. 



ARTICLE 7. 

OBSCENE PICTURES, AND ABUSIVE AND VULGAR LANGUAGE. 

§394. (4537 a.) Use of obscene pictures. If any person shall bring, ^f^f™' 
or cause to be brought, into this State for sale or exhibition, or shall 

sell or offer to sell, or shall give away or offer to give away, or having 

possession thereof shall knowingly exhibit to another, any indecent 

pictorial newspaper tending to debauch the morals, or any indecent 

or obscene book, pamphlet, paper, drawing, lithograph, engraving, 

daguerreotype, photograph, picture, or any model, cast, instrument 

or article of indecent and obscene use, or shall advertise any of naid 

articles or things for sale, by any form of notice, printed, written, or 

verbal, or shall manufacture, draw or print any of said articles, 

with intent to sell or expose, or to circulate the same, he shall be 

guilty of a misdemeanor. 

It was correct to submit to the jury the reading matter and also the illus- 
trations in the newspaper, that they might determine their character: 
72 Ga. 261. 

§395. (4537 b.) Obscene prints, etc. If in a public place, on any A p ct f^ 878 " 9 ' 
fence or wall, or other surface contiguous to the public street, or on 
the floor or ceiling, or on the inner or outer wall of any closet, room, 
passage, hall, or any part of any hotel, court-house, church, school, 
station-house, depot for freight or passengers, capitol, or other build- 
ings devoted or open to other or like public uses, or on the walls of 
any outbuilding or other structure pertaining thereto, and fre- 
quented by the users thereof, any person shall make or cause to be 
made, any obscene drawing or picture, or obscene writing or print, 
liable to be seen of others passing or coming near the same, he shall 
be guilty of a misdemeanor. 

§396. (4372.) Using abusive or obscene language . Any person who "l ^ 865 " 6 ' 
shall, without provocation, use to, or of , another, and in his pres- J|Ig- p- ^ 
ence, opprobrious words or abusive language, tending to cause a 1890 " 1 - 5 - 83 * 
breach of the peace, or who shall, in like manner, use obscene and 
vulgar or profane language in the presence of a female, or by inde- 
cent or disorderly conduct in the presence of females on passenger- 
cars, street-cars, or other places of like character, shall be guilty of 
a misdemeanor. 

§397. (4372.) Jurisdiction of above offenses. Offenses mentioned in p.^, ' 

the preceding section, which are not committed on passenger-cars, JstEI p! 25. 

street-cars, or other places of like character, shall not be inquired 

into by any court, except upon presentment made, or indictment 

found, by the grand jury. 

The sounder and safer construction is that the use of spoken words only is 
contemplated. If it embraces written words, the indictment should describe 
the instrument: 90 Ga. 456. 



88898, 399 TENTH DIVISION.— ARTICLE 8. 122 



Gaming-houses, gaming-tables, and gambling. 



When used in her hearing, it is used in her presence : 48 Ga. 311. The State 
must allege and prove that the words were used without provocation: 72 Ga. 
218. If provocation be given and proved, the justification is made out, whether 
the words be an insult or not : 53 Ga. 369. It may be shown that the woman 
provoked defendant's reply: 78 Ga. 87. 

Words that come within the section : 41 Ga. 278; 78/335. 

Words that do not : 89 Ga. 549 ; 95/475. 

No defense that the woman had been pregnant: 48Ga.311. Nor that de- 
fendant had been told that the person to whom the words were addressed had 
insulted his wife, there being no evidence of that fact : 94 Ga. 593. 

Other abusive words shown in rebuttal to prisoner's statement: 86 Ga. 362. 
When such words may be used in a municipal court: 89 Ga. 336. 

Not competent to ask the woman as a witness if her husband, the prose- 
cutor, had not offered to compromise: 73 Ga. 83. 

( )n a charge of to and of another there may be a conviction on proof that the 
words were used of, but not to, him: 89 Ga. 335. 

There must be an indictment or presentment by the grand jury : 90 Ga. 330. 



ARTICLE 8. 

GAMING-HOUSES, GAMING-TABLES, AND GAMBLING. 

Cobb.6i5 % §398. (4538.) Gaming-houses. If any person shall, by himself, 
p. 233. servant or agent, keep, have, use or maintain a gaming-house or 
room, or shall in any house, place or room, occupied by him, permit 
persons, with his knowledge, to come together and play for money 
or any other valuable thing at any game or device for the hazarding 
of money or other thing of value, or shall knowingly rent or let 
any house or room with the view r or expectation of the same being 
used for such purpose, he is guilty of a misdemeanor. 

That defendant had rented out the house does not relieve him, the house 
being in his possession at the time of the gaming : 29 Ga. 263 ; 83/580. 

Where husband and wife reside together, he is the head of the house. 
When both are present, it is his duty to prevent gaming therein, and to hold 
her liable criminally for permitting gaming, it must appear affirmatively that 
she was active in granting permission, not merely that she was passive: 92 Ga. 
49. This verdict supported : 82 Ga. 297. 

The description of the house, as to location, need not be more definite than 
that it is in the county: 68 Ga. 339. 

On an indictment for keeping, and also for renting, a general verdict of 
guilty is sufficient: 68 Ga. 33!). 

Act .i 1872, §399. (4530.) Retail liquor dealers or clerks, not to permit minors to 
pp.w, play a i an y game with cards or dice. If any retail liquor dealer, or 
clerk in his employ, shall knowingly permit or allow, any minor to 
play at any game in which cards or dice are used, in the house in 
wbich such retail liquor dealer carries on his business of retailing 
spirituous liquors, or in any rooms connected therewith, and under 



128 TKNTIT DTVISrON.— ARTICLE H. KXMQ2 



Gaming-houses, gaming-tables, and gambling. 



1 1 i m control, he, or liis clerk, ho offending shall be guilty of a misde- 
meanor. 

Cited: 75 Ga. 265. 

§400. (4540.) Gaming-tables, If any person shall, by himself ,,] ' < ' l ::\^l; l 
servant, or other agent, keep or employ any table of whatever Jg .]*.'% 
name, kind or description, for gaming, and shall, by himself, servant S?!* 9 ' 
or agent, preside or deal at, or use, any such tabic, for the purpose ! ' 
of playing and betting at the same, he, his servant and agent, 80 
offending, shall be guilty of a misdemeanor. 

This includes every device, kept or used or presided over by one person, 
that others may play and bet thereat. The " like character," formerly in the 
section, meant a device deciding by chances a result upon which bystanders 
might bet and play: 40 Ga. 689; 48/510; 88/458. 

It is not necessary to show that things of value were bet: 60 Ga. 146. 

§401. (4541.) Gambling. If any person shall play and bet for^gj*' 819 ' 
money, or other thing of value, at any game played with cards. ^?% M59 ' 
dice or balls; or shall play and bet for money, or other thing of 18 ^.^ 
value, at any table of whatever name, kind or description, for gam- 
ing; or shall bet at any game of nine-pins, or any other number of 
pins, or at any billiard or pool table, he shall be guilty of a misde- 
meanor. 

Playing and betting at several games at the same time by the same persons 
is but one offense, for which but one count is sufficient: 13 Ga. 396; 17/360; 
20/155; 22/102. 

Bystanders, who bet on the result of throwing dice for money by others. 
are guilty of playing and betting : 91 Ga. 152. 

Courts will judicially notice that money is a thing of value: 89 Ga. 393. 
Nickels need not be proven to be of value : 62 Ga. 164. Checks or chips, which 
represent money, are things of value : 51 Ga. 300; 77/101. The kind of money 
need not be specified : 69 Ga. 767. 

Not necessary to allege with whom the gaming took place, nor for what 
thing of value : 68 Ga. 322. 

Defendants played and bet with each other, when they played at the same 
game and bet, although they all bet against the man who presided at the 
game: 69 Ga. 767. 

Declarations of one of the gamblers, during the progress of the game, part 
of the res gestx of the game : 89 Ga. 391. 

State not forced to elect where the charge was "a game of five-up and 
other games played with cards" : 68 Ga. 322. 

Offense may be proved at any time within two years preceding the finding 
of the indictment: 18 Ga. 736 ; 34/202 ; 77/101; 89/394. 

§402. (4542.) With minors. Any person keeping a table, or deal- Ae1 ^ 865 ^« 

ing at a game as above specified, who shall permit any minor to 
play and bet thereat, or any person of full age who shall gamble 
with a minor at any of the games above specified, shall be guilty of 
a misdemeanor. 



g§ 408-407 



TENTH DIVISION.— ARTICLE 9. 



124 



Lotteries and j^it't enterprises. 



Oobb, - - 
B16. 



§403. (4544.) With clerk* and bank officer*. The provisions of the 
preceding Bection shall extend to all persons gaining with the officer 
or agent of any bank intrusted with any of its funds, or any clerk 
in any post-office in this State. 

£404. (4545.) Players competent witnesses. On the trial of any 
person for offending against sections 898, 400, 401, 402, and 408 of 
this Article, any other person who may have played and bet at the 
same time or table, shall be a competent witness, and be compelled 
to give evidence; and nothing then said by such witness shall at any 
time be received or given in evidence against him in any prosecu- 
tion, except on an indictment for perjury in any matter to which 
he mav have testified. 



A witness testifying truthfully cannot criminate or tend to criminate him- 
self, and this section not annulled by the Constitution : 62 Ga. 396. Lotteries 
not embraced: 95 Ga. 326. 

Cobb, 8i6. §405. (4547.) Suspected rooms or houses may be broken open. Any 
lawful officer, with legal authority, may break open suspected rooms 
or houses, where it is commonly known that gaming is carried on, 
and may take any person found gaming, and bind or cause him to 
be bound over to the next superior court to be held for the county 
where such offense may be committed; and if he shall fail or refuse 
to give security for his appearance at court to answer for such 
offenses, he shall be committed to jail. 

The warrant for the seizure of the keeper, carries with it the power to seize 
the implements of crime, to be used as evidence before the grand jury: 
70 Ga. 424. 



ARTICLE 9. 



LOTTERIES AND GIFT ENTERPRISES. 



Acts 1S80-1 
p. 02. 



Aot.s 1877, 

p. 112. 



§406. (4549.) Lottery tickets. If any person, either by himself or 
his agent, shall sell or offer for sale, or procure for, or furnish to, 
any person any ticket, number, combination, or chance, or any- 
thing representing a chance in any lottery, gift enterprise, or other 
similar scheme or device, whether such lottery, gift enterprise, or 
scheme shall be operated in this State or not, he shall be guilty of a 
misdemeanor. 

§407. (4549b.) Carrying on a lottery. No person, by himself, 
or another, shall keep, maintain, employ, or carry on any lottery 
in this State, or other scheme or device for the hazarding of any 
money or valuable thing. 

A scheme defined: 67 Ga. 658. All participants are principals: 95 Ga. 326, 
330, 333. 



125 TENTH DIVISION.— ARTICLES 10, 11. K&-418 



Cock-fighting. Minors not to play billiards or ten-pins without consent of parent 

§408. (4549 c.) Lottery 'wheels, turning. No person, by himself or^J 
another, shall turn any lottery wheel, or draw therefrom any ball, 
number, letter, or other thing indicating the decision of any chance 
or hazard of the lottery, or in anywise be present, aiding and assist- 
ing in the working, turning, or drawing thereof. 

§409. (4549 d.) Penalty. Any person offending against the pro- ^J^ 77 ' 
visions of the two foregoing sections, or either of them, shall be 
guilty of a misdemeanor. 

This law constitutional : 68 Ga. 826. 

§410. Unlawful to advertise lottery, etc. If any person shall print, ^ t J^ 8Q ' 
advertise or publish any lottery, gift enterprise or other scheme for 
the hazarding of money, or other thing of value, forbidden by the 
laws of this State, or the result of the drawing of prizes or distribu- 
tion of gifts therein, either by newspaper advertisements, or written 
or printed posters, dodgers or circulars, or cause the same to be 
done, he shall be guilty of a misdemeanor. 

§411. What constitutes a prima facie case against jmMishers. When- A ^ t ^ 80, 
ever any advertisement or publication in a journal or newspaper in 
this State, contrary to the provisions of the foregoing section, shall 
be proven in any criminal trial or proceeding against the publisher, 
owner or manager of said journal or newspaper, it shall create a 
prima facie case against him, and shall authorize a conviction unless 
the defendant shall show by testimony, satisfactory to the jury, 
that he did not cause, authorize or knowingly permit, the publica- 
tion or advertisement. 



ARTICLE 10. 

COCK-FIGHTING. 



§412. Cock-fighting or betting on same. Any person who shall, for "^Jjjf 89, 
sport or gaming purposes, fight or cause to fight any chickens, cocks 1S9 ^;4* 
or other fowls, or who shall maintain, keep or carry on any cock- 
pit, or other similar place for the fighting of chickens, cocks or 
other fowls, or who shall bet, wager or stake any sum of money or 
other thing of value on the result of any such fight or contest, in 
this State, shall be guilty of a misdemeanor. 



ARTICLE 11. 

MINORS NOT TO PLAY BILLIARDS OR TEN-PINS WITHOUT CONSENT OF 

PARENTS, ETC. 

§418. (4543.) Minors not to play billiards or ten-pins. An owner, Acts iseo, 
or person controlling a billiard table, or ten-pin alley, who shall 



§§414t417 TENTH DIVISION.— ARTICLE 12. 126 



Traffic in human bodies. 



*y . Sf. . jpermii any minor to play or roll on the same, without the consent 
of the parent or guardian, shall be guilty of a misdemeanor. 

Play and roll are used as synonymous: 45 Ga. 11. 

The burden of proving that the parent or guardian did not consent is on the 
State: 50 Ga. 103. 

Thai the minor was permitted to play without the parent's consent made a 
prima facie case, but if the defendant, after due diligence, thought honestly 
that the young man was not a minor, he is not guilty. The diligence required 
is that reasonable diligence which, in view of the nature of the case, a good 
citizen and prudent man would use: 53 Ga. 230; 63/620; 75/266. 



ARTICLE 12. 

TRAFFIC IN HUMAN BODIES. 

Act^_i887, §414. Illegal traffic in human bodies. Whoever shall sell or buy 
such body as is required by law to be delivered to a board for the 
distribution and delivery of dead bodies, or any other dead human 
body, or in any way traffic in the same, or shall transmit or convey, 
or procure the same to be done, such body, or any other dead human 
body, to any place outside of this State for purposes of sale or 
dissection, shall be punished by imprisonment and labor in the peni- 
tentiary not less than one nor more than ten years. 
Acts b i865 8 -6 §415. (4563.) Illegal removal from grave. Whoever shall remove 
1&7 233 ' 87 * ne dead body of a human being from any grave, or other place of 
interment, or from any vault, tomb, sepulchre, or from any other 
place, for the purpose of selling or dissecting the same, or from mere 
wantonness, shall be punished by imprisonment and labor in the 
penitentiary not less than one nor more than ten years; and any per- 
son who shall receive or purchase any dead human body, knowing it 
to have been so disinterred or removed from any tomb, vault 
or sepulchre, or such other place, for the purpose aforesaid, shall re- 
ceive the same punishment. 

Act {Jo 1887 ' §416. Omission to perform duties. Any person having duties en- 
joined upon him by the provisions of sections 1511, 1512, 1513, 
1514, 1515, or 1516 of the Civil Code, who shall refuse or omit to 
perform the same, shall be guilty of a misdemeanor. 

§417. (591.) Disinterring by coroner without good grounds. If any 
person makes affidavit to facts to authorize the coroner to disinter 
a body, or the coroner does so of his own motion, and it is done 
without good grounds, or from malice or mischief, the person so 
swearing, or the coroner so officiating, shall be punished as for a 
misdemeanor. In such cases all the circumstances shall go to the 
jury, and if they believe there were reasonable grounds for the dis- 
interment at the time it took place, it is their duty to acquit. 



127 TENTH DIVISION.— ARTICLE L8. L8-430 



Disturbing divine service, or gocietiM* riolating the Sabbath, Intruding on camp groun< 

ARTICLE 18. CTP-*- oA-,^ ■/«-» * <*-»-v*~o ■ 

DISTURBING DIVINE SERVICE, OR SOCIETIES, VIOLATING THE SABBATH, 
INTRUDING ON CAMP GROUNDS, AND DISTURBING SCHOOLS. 

§418. (4574.) Interfering with religious worship. Any person ^h° Ac^iafi-s 
shall, by cursing or using profane or obscene Language, or by being ] lL\:f. , J,[' 
intoxicated, or otherwise indecently acting, interrupt , or in any man- Jj^p, 100. 
ner disturb, a congregation of persons lawfully assembled for divine* ww ' p,w * 
service, and until they are dispersed from such place of worship, 
shall be guilty of a misdemeanor. 

On an indictment against two, the evidence must apply to the same trans- 
action : 87 Ga. 432. 

Four were indicted, one convicted, and the evidence supported the verdict: 
31 Ga. 232. 

The proof conformed sufficiently to the charge of vulgar noises, etc.: 
90 Ga. 459. 

A sufficient indictment in the absence of a special demurrer : 60 Ga. 464. 

§419. (2346.) Social and other societies protected. The preceding A p ct | 7 2 8 ' >:> " 6, 
section, and also section 434 of this Code shall apply to all societies, isoo.p.es. 
whether social, charitable, secret, Masonic, or by whatever name 
they may be called. 

§420. (4578.) Running freight-trains on Sabbath. If any freight- AcSiJ?' 
train, excursion-train or other train than the regular trains run for iJga^p.w. 
the carrying of the mails or passengers, shall be run on any railroad w ^^ *iv. 
on the Sabbath day, the superintendent of transportation of such 
railroad company, or the officer having charge of the business of that 
department of the railroad, shall be liable to indictment in each 
county through which such train shall pass, and shall be punished as 
for a misdemeanor. 

The foregoing provisions shall not extend to — 

1. A train which has one or more cars loaded with live stock, and 1873 - p- 63 - 
which is delayed beyond schedule time. Such train shall not be 
required to lay over on the line of road during Sunday, but may run 

on to the point where, by due course of shipment or consignment, 
the next stock-pen on the route may be, where such animals may be 
fed and watered, according to the facilities usually afforded for such 
transportation . 

2. A freight-train running over a road on Saturday night, if the 1S74 - p- p: - 
time of its arrival at destination according to the schedule by which 

it started on the trip, be not later than eight o'clock Sunday morning. 

3. Special fruit, melon and vegetable trains, the cars of which 1S ^- pp- w « 
contain no other freight except perishable fruits, melons, vegetables, 

fresh fish, oysters, fresh meats, live stock, and other perishable goods 
of a like character, and which trains shall be loaded and leave the 
station from which they start in this State before the hour of midnight 



§§421-428 TENTH DIVISION.— ARTICLE 13. 128 



Disturbing divine service, or societies, violating the Sabbath, intruding on camp grounds, etc. 

pn Saturday night previous to the Sunday on which they are. operated. 
No company shall be compelled to run the trains mentioned in this 
paragraph, and all freight-trains or cars thus loaded and coming into 
this State may run to any point of destination in this State or con- 
tinue their run through the State on Sunday. 

This is a regulation of internal police, and not a regulation of commerce: 
90 Ga. 396. 

A locomotive and cab, when not run for carrying freight, nor intended to be 
presently used for such carriage, is not a freight-train: 94 Ga. 592. 

Time is of the essence of this offense, to the extent that it must be on Sun- 
day. Proof of any Sunday within the period of limitation before the finding of 
the indictment, sufficient : 88 Ga. 789. 

If there was any legal excuse or justification, the burden of proving it was 
on the accused: 88 Ga. 787. 

A freight-train not started on its schedule until 12:50 a. m. of Sunday 
morning cannot be lawfully run either before or after eight o'clock of that 
day: 88 Ga. 787. 

It is no justification that the company has issued general rules and orders to 
its employees not to do so, without also showing in some way, that the viola- 
tion was without the sanction or connivance of the officer indicted : 92 Ga. 477. 

§421. (4578.) Proof on the trial. On the trial for the violation of 
the preceding section, it shall not be necessary to allege or prove the 
name of any employee engaged on such train, but it shall be sufficient 
to prove that the train was run. The defendant may justify himself 
by proving that such employees acted in direct violation of his orders 
and rules. 

Cobb, 853. £422. (4579.) Violating the Sabbath day. Any person who shall 

.A. C L S XoOO"0 « 

p. 233. pursue his business, or the work of his ordinary calling, on the Lord's 
day, works of necessity or charity only excepted, shall be guilty of a 
misdemeanor. 

The legislature has power to regulate the observance of the Sabbath: 
44 Ga. 205. 

This dates back to the Colonial statute of 1762: 90 Ga. 397. A court of 
inquiry cannot be begun and held on Sunday. Warrants may issue and arrests 
be made : 62 Ga. 449. 

A note given on Sunday, in a work not of necessity or charity and other- 
wise than in the ordinary callings of the parties, is not within this section: 
29 Ga. 526. 

A payment by a debtor to a merchant on a note due to him, on the Sabbath 
day, violates this section, and will not operate to arrest the running of the 
statute of limitations: 31 Ga. 607; 41/453. 

A contract for labor, made on Sunday, and performed afterwards by the 
laborer, can be enforced : 44 Ga. 541. 

Municipal corporation cannot legislate upon this subject: 69 Ga. 503. 

Acts 1873. §423. (4580.) Hunting on Sunday. Any person who shall hunt 
any kind of game with gun or dogs, or both, on the Sabbath day, shall 
be guilty of a misdemeanor. 



\2\) TKNTII DIVISION.— ARTICLE 14. 124-429 



Regulating the Bale and use at spirituous, vinoui and malt liquor*. 



This is constitutional : 89 Ga. 841. 

The word " game" is to be understood in its ordinary signification. Sunday 
and the " Sabbath day," are synonymous in our Legislation : 89 Ga. 841. 

§424. (4581.) Indecent bathing. Any person who shall bathe in a ^J^f*' 
stream or pond of water on the Sabbath day, in view of a road or" 86 **'* 
passway, loading to or from a house of religious worship, shall be 
guilty of a misdemeanor. 

§425. Intrusion on camp grounds. If any person shall camp upon A ] ( ; v ^''' 
a camp ground used for religious purposes and having its boundary 
lines plainly marked by stakes, posts or otherwise, except during tie- 
progress of religious services, without the consent of the trustees or 
other person in charge of such grounds, or if any person shall place 
an animal of any kind within any booth, tent, stall or arbor on such 
camp ground without the consent of the owner or the person in 
charge of the same, he shall be guilty of a misdemeanor. 

§426. (4576.) Vending near camp grounds. If any person shall vend 
or expose to sale anything whatever, within one mile of the place of 
worship in a camp ground and during the period of divine worship 
thereat, without the written consent of a majority of the trustees, 
commissioners or owners of such camp ground, he shall be guilty of 
a misdemeanor. 

§427. (4577 a.) Interfering with schools. Any person who shall Acts^isso-i. 
willfully interrupt or disturb any public school, private school, or 
Sunday-school, or any assemblage, or meeting of any such school, 
lawfully and peaceably held for the purpose of scientific, literary, 
social, or religious improvement, either within or without the place 
where such school is usually held, shall be guilty of a misdemeanor. 

A sufficient indictment : 95 Ga.« 469. 



ARTICLE 14. 



REGULATING THE SALE AND USE OF SPIRITUOUS, VINOUS AND 

MALT LIQUORS. 

§428. Selling or soliciting in prohibition counties. If any person shall Act «]f 93, 
sell, or solicit, personally or by agent, the sale of spirituous, malt or jt/fc ■ ff- 3^ 
intoxicating liquors, in any county where the sale of such liquors is 
prohibited by law, high license or otherwise, he shall be guilty of a 
misdemeanor. 

8429. Purchases of licensed dealers outside of such counties, etc. The ^ctsMW, 

° ^ » p. 115. 

foregoing section does not prevent the furnishing of such liquors to 
persons in such prohibition counties upon purchases made of licensed 
dealers in such liquors outside of, and not solicited or contracted 
9 



§§490,481 TENTH DIVISION.— ARTICLE 14. 180 



Regulating the sale and use of spirituous, vinous and malt liquors. 

for in, said prohibition counties. Nor does it prevent the soliciting 
of orders from licensed druggists and practicing physicians. 
HMsftt!' §4^0- (809g.) Dealers failing to pay tax after registry. Where a 
person, or members of a firm register as a dealer in spirituous or malt 
liquors, or intoxicating bitters, and fail or refuse to pay the tax as 
provided by law, or where a person, or members of a firm commence 
to sell spirituous or malt liquors, or intoxicating bitters, without 
complying with the requirements of law, such person, or persons, 
shall be guilty of a misdemeanor, and it shall be the duty of the tax- 
collector to give information against him or them to the solicitor- 
general of the circuit, who shall cause them to be prosecuted. 

If a person or firm registered as dealers, the presumption would be that they 
were carrying on the business, and the onus of proving the contrary would be 
,on them : 73 Ga. 38. 

May register without permission and without paying taxes: 90 Ga. 133. 

This is constitutional : 73 Ga. 38. 

Acts b is82-3 §431. (4565.) Retailing spirits without license. If any person shall 
issmIp 83 keep a tippling-shop, or sell without the license, and taking the oath 
1 ?^£ prescribed by law, or sell by retail, any wine, brandy, rum, gin, 
or whisky, or other spirituous liquors, or any mixture of such 
liquors, in any house or other place, without license from the proper 
authority in said county, or without license from the corporate au- 
thorities of any town or city, where by law authority to grant license 
is vested in such corporate authorities, he shall be guilty of a 
misdemeanor. No person shall be liable to indictment in the 
superior courts for a violation of this section, when he has been 
tried by the corporate authorities for the same offense. 

An arbitrary refusal to grant a license is no defense: 65 Ga. 437. Dealers 
who sell while they are unable to procure a license are liable : 63 Ga. 344. A 
license for less than a year will not protect : 65 Ga. 157. A license is simply a 
permit, and may be revoked : 82 Ga. 224. 

The onus is on defendant to show that he had a license: 17 Ga. 290; 34/531. 
One who sells by the quart must obtain license and take the oath : 60 Ga. 634. 
One who only sold by the gallon could not be convicted : 79 Ga. 365. 

The persons residing nearest the place where the liquor is to be sold, are 
those who are to consent to granting a license : 84 Ga. 140. 

An indictment for selling by the quart need not allege that defendant had 
no license from an incorporated town or city: 60 Ga. 634. When the indict- 
ment is for selling in quantities less than a quart, it should contain the nega- 
tive averment that it was sold within the limits of an incorporated town or 
city authorized to grant licenses: 60 Ga. 634. Indictment good, although it 
does not allege that defendant keeps a shop, or is a regular and habitual vender 
of liquors: 32 Ga. 595. An indictment would lie under a general law for an 
offense committed within two years, and before the adoption of a local option 
law : 80 Ga. 714. Need not charge to whom it was sold : 68 Ga. 826 ; 89/483. 

An employer is liable for sales made by his clerk under a general authority 
to sell unlawfully : 80 Ga. 232. 

The sale of nerve tonic is relevant when there is evidence tending to show 
that nerve tonic is rye whisky : 80 Ga. 232. 



181 TENTH DIVISION.— ARTICLE 11. L82-484 



Regulating the Bale and use of spirituous, vinous and malt liquors. 



Evidence conflicting as to Schiedam schnapps: 73 Ga. 426- Cireumstain 
to show a sale: 91 Ga. 164. The case of a man who bought for another: 98 Ga. 

47. A druggist soiling on physician's state men t, liable : 34 Ga. 533. Husband 
who managed wile's store;, guilty: 73 Ga. 426. Person retailing in his kitchen 
by a servant, guilty : 63 (la. 349. Some evidence to show guilt: 80 Ga. 427. 
This sufficient : 86 Ga. 430. 

Corporate authorities have jurisdiction as well as the superior court: 
72 Ga. 317. 

§482. (1420.) Oath of venders of liquors. By the first day in June 28&8J 1, 
in each year, venders of any quantity of spirituous Liquors shall take iflfcJWSfc 
and subscribe the following oath, and upon neglecting to do so they 
are subject to all the penalties of retailers without license. 

"I swear that I will not, during the next twelvemonths, sell, bar- 
ter, give, or furnish spirituous or intoxicating liquors in any quan- 
tity to any minor, without the consent of his parents or guardian, 
and that I will not allow others to do so for me with my knowledge 
or consent. So help me God." 

A sufficient indictment : 32 Ga. 595. 

§433. Laws as to retailers apply to wholesalers. No person, firm or^ ^ 890 " 1, 
corporation shall sell spirituous, vinous or malt liquors in any county 
or village in any quantity, without first obtaining a license from the 
authorities authorized by law to grant license for the sale of such 
liquors by retail. The laws with reference to the granting of license 
to retail dealers in spirituous, vinous and malt liquors in the several 
counties, and the penalties attached for the violation of the same, 
are applicable to dealers who sell in any quantity. This section does 
not interfere with municipal laws regulating the sale of spirituous 
liquors, by wholesale or otherwise, nor does it embrace the sale of 
domestic wines. 

This prohibits the sale of such liquors in any quantity, anywhere in the State, 
without a license : 95 Ga. 337. 

License to sell in any quantity is requisite, and the power to grant is with 
the officer having power to grant licenses to retail: 93 Ga. 38. 

The phrase "dealers in spirituous liquors" comprehends all persons who sell 
such liquors in any quantity : 93 Ga. 418. 

The description "spirituous, vinous or malt" does not embrace all intoxica- 
ting liquors. No conviction can be had without proof that the liquor sold was 
spirituous, vinous or malt liquor, or some mixture of one or more of these 
liqudrs : 93 Ga. 814. 

Alcoholic, spirituous, malt and intoxicating bitters are comprehended in the 
phrase " intoxicating liquors." Courts cannot judicially notice that rice beer 
is intoxicating: 91 Ga. 227. 

A special law prohibiting sales, does not vary a general law regulating sales : 
91 Ga. 227. 

§434. (4575.) Selling liquor within three miles of a church. If any 'l * 3 ^? " 1, 
person shall sell, or offer to sell, any spirituous, alcoholic or malt V3S - 
liquors, in any quantities, within a radius of three miles of any church 
or public or private schoolhouse, he shall be guilty of a misdemeanor. 

This law is constitutional: 89 Ga. 821. 



g§ 485-441 TENTH DIVISION.— ARTICLE 14. 132 



RegulaU&g the Bale and use of spirituous, vinous and malt liquors. 



Conviction, where the barroom was in a geometrical straight line, sixteen 
feet less than three miles from a church: 89 Ga. 821. 

A m^il^ M ' |435« (4575.) Exceptions, The preceding section does not apply 
to an incorporated town or city, nor to the sale of such liquors in 
original packages of not less than forty gallons, by the manufac- 
t tirer t hereof t o legally authorized dealers; nor does it prohibit the sale 
of domestic wines; nor does it prohibit regular practicing physicians 
from dispensing alcoholic stimulants for medical uses in their 
practice. 

Act j-^" L §486. (4577 b.) Carrying liquor to Sunday or day schools. Any 
person who shall carry intoxicating liquor, except for medicinal pur- 
poses, to any place where people are assembled for Sunday-school, 
or for a Sunday-school celebration, or day-school celebration, shall 
be guilty of a misdemeanor. 

A £ t V2 BIi ' §487. (1874a.) Sale of liquors near the Asylum prohibited. Any 

jvc!' p ;!jf" person who shall expose for sale, or sell, barter, or give away alco- 
holic, vinous or fermented liquors of any kind, within a distance of 
two miles from the State Lunatic Asylum buildings; or who shall sell, 
barter, or give away such liquors to any patient or lawful inmate of 
said Asylum, or to any employee in the service of that institution, 
shall be punished as for a misdemeanor. This section shall apply 
only to the country outside of the corporate limits of the city of 
Milledgeville. 

A p t i» 890 ' 1, §^38. Liquors not to be carried to places of divine worship. If any 
person shall carry to a church or other place where the people have 
assembled for divine worship, any liquor or intoxicating drink, or 
shall keep or have in his possession, custody or control any intoxi- 
cating liquor at such place, he shall be guilty of a misdemeanor. 

A p t i2& 890 " 1, §489. Unlawful to be at such place intoxicated. If any person shall 
be and appear at any church or other place of divine worship, intoxi- 
cated, or in any manner under the influence of intoxicating liquors, 
while the people are assembled for the purpose of engaging in any 
religious services, he shall be guilty of a misdemeanor. 

A p ^sjI 890 *' §440. Unlawful to use liquor at such place. If any person shall drink 
or in any manner use any intoxicating liquor at any church or other 
place of divine worship, where the people are assembled for the pur- 
pose of engaging in such religious services, he shall be guilty of a 
misdemeanor. 

^m 90 " 1 ' §441. Exceptions. Nothing in the preceding sections shall prevent 
the use of intoxicating liquor at such place in case of accident or 
misfortune, nor prohibit practicing physicians and surgeons from 
carrying and using such liquor as they may deem necessary in their 
regular practice, nor prohibit the proper officers from carrying to, 
and ministers of the gospel using at, such place, such wines as they 
may wish for sacramental purposes. 



188 TENTH DIVISION.— ARTICLE 14. 142-444 

Regulating the sale and use of spirituous, vinous an< I malt Liquor*. 

§442. Furnishing liquor to habitual drunkard, if any person shall 
sell or furnish any spirituous, malt or Intoxicating liquor-; in any 
quantity to an habitual drunkard personally known to him, of who.-;'; 
intemperate habits such person lias been notified in writing, protest- 
ing against the selling or furnishing such intoxicating liquors, by the 
wife, father, mother, brother or sister of such drunkard, he shall be 
guilty of a misdemeanor. 

§448. (1428.) Furnishing liquor to intoxicated persons . Any seller of '^''jV^'"' 
spirituous liquors who shall sell or furnish liquors or other intoxi- ™»p- no - 
eating drinks to any person who is at the time intoxicated or drunk, 
shall be guilty of a misdemeanor. 

§444. (4540a.) Sale of liquor to minors. If any person, by him- "^l,;.?"'' 
self or another, shall sell, or cause to be sold, or furnished, or per- 1877 ' p - laI - 
mit any other person, in. his employ, to sell or furnish any minor 
spirituous or intoxicating or malt liquors, without first obtaining 
written authority from the parent or guardian of such minor, he 
shall be guilty of a misdemeanor. 

This contemplates furnishing to the minor himself, either for his own use or 
for some use to which he applies it in the exercise of his own will : 89 Ga. 785. 

It is a police regulation : 86 Ga. 752. 

Nonage must be proven : 92 Ga. 474. 

Not necessary to prove that alcohol is a spirituous and intoxicating liquor. 
When it is not well known and recognized by the people generally that a drink 
is intoxicating, proof that it is, should be made: 81 Ga. 753. As to whether 
the proof should show beer to be an intoxicant : 81 Ga. 756. 

This offense is complete whenever it is shown that intoxicating drink was 
sold or furnished to a minor, by any one acting in defendant's place of business 
in any capacity whatever: 75 Ga. 258 ; 77/717; 81/754; 83/553. To receive 
money from a minor and purchase and deliver to him, at his request, is suffi- 
cient: 92 Ga. 474. A sale by the dealer's clerk in his presence is, in effect, a 
sale by the dealer. A sale with the dealer's permission, and not by his order 
or direction, is a different offense from a sale by him, his order or direction: 
83 Ga. 553. The sale is sufficient to convict, unless defendant, after due 
inquiry, was honestly mistaken as to the minor's age ; the diligence that must 
be shown: 63 Ga. 616; 89/478; 92/474; 64/437; 34/531. 

The sale makes a prima facie case, and the burden is on the defendant to 
show authority : 63 Ga. 616; 56/601. The authority must be special for each 
occasion : 86 Ga. 751. That the father directed a saloon-keeper to send him 
liquor by his minor son when he sent for it, which was done, was not author- 
ity for selling liquor to the minor which he drank at the bar: 77 Ga. 717. It 
was no defense that the parents were dead and the minor had no guardian : 
81 Ga. 628. 

Private instructions to the clerks and barkeeper, inadmissible: 75 Ga. 258. 

Proof of a sale to one minor will sustain a conviction under an indictment 
charging a sale to two : 79 Ga. 795. 

If the liquor is delivered to the minor, not for his use, but to be carried to 
the parent on an alleged verbal order, defendant takes the burden of proving 
that the order was sent and was the real basis of the transaction, and that the 
minor actually carried the liquor intact to the parent : 89 Ga. 785. 



g§ 445-451 TENTH DIVISION.— ARTICLE 14. 134 

g the Bale and he s\ Lrituous, vinous and malt liquors. 

It is nor necessary to allege a scienter: 75 Ga. 258. On demurrer, an indict- 
ment is bad. when it negatives authority from the mother only, and does not 
aver that she was the sole parent, or that the father was dead, or that there 
was no guardian : 63 Ga. 533 ; 64/437. This sufficient in the absence of a demur- 
rer: 63 G&.617. 

A p Ct isi SS<: '" 1 ' H^« (4540c.) Employing minor* in barrooms. If any person 
keeping or carrying on, either by himself or by another, a barroom, 
or other place where spirituous liquors are sold by retail to be drunk 
on the spot, shall employ a minor in such barroom or other place. 
he shall be guilty of a misdemeanor. 

Cited: 75 Ga. 264. 

^ cts . : £446. (4570.) Selling liquor on election day. Any person who shall 

a sell, give or furnish spirituous, intoxicating or malt liquors to any 
?ia person, in any quantity, within two miles of any election precinct. 
1887. p. 42. on days of election, either State, county, municipal, or primary elec- 
tions or elections held under the local option liquor law. shall be 
guilty of a misdemeanor. 

A p Ct V S7S ~ 9 ' £~^~- (4570.) Exception as to physicians. The preceding section 
does not prevent prescriptions by physicians. 

ac:«->- £44>. (4570.) Definition of primary. Primary elections shall be 
construed to mean elections by ballot for the nomination of a can- 
didate or candidates for office, as opposed to nomination by conven- 
tions, to run at subsequent elections to be held under the laws of 
this State, for State, county or municipal offices. 

^iso 890 " 1 ' 1^49. Domestic wines defined, and counterfeiting them punished. The 
term ""domestic wine" shall mean wines made from berries, grapes, or 
other fruits grown in this State; and any person selling wines or 
liquids compounded from chemicals, drugs, or from anything else. 
Kxe^pt said berries, grapes or fruits, and claiming them to be. or 
offering them for, domestic wines, shall be guilty of a misdemeanor. 

"^p^ 1887 ' §450. Dealing illegally in domestic wines and intoxicants. Any per- 
son who shall deal in domestic wines or other intoxicants in violation 
of law and shall fail or refuse to pay the tax imposed by law. shall be 
guilty of a misdemeanor. Whenever any person shall be prosecuted 
under the provisions of this section, and it shall be proven that he 
sold domestic wines or other intoxicants, the burden of proving the 
right to sell shall be cast upon him: and in all prosecutions under 
this section, the defendant shall be a competent witness in his own 
behalf. 

A p Ct ?-'4 SS4 r ' 8^51. Violation of local option law. Any person violating any pro- 
vision of the local option law as embraced in sections 1541 to 1550. 
inclusive, of the Civil Code, shall be guilty of a misdemeanor. 

The local option legislation is constitutional as a valid exercise of the police 
powf>r: 78 Ga. 66*: S2/6. 



135 TENTH DIVISION.— ARTICLE 15. 152, L58 

Viitfran 



This Act did not repeal a special local option act passed before it- pas- 
sage: 83 Ga. 616. Applies to all counties execpt where alreadj prohibited: 
89 Ga. 121. 

One who receives money and delivers whisky therefor, fa a seller: M Ga. 

326; 87/265; 93/51. Agreement to deliver, and delivery of, whisky as compen- 
sation for the use of a buggy. Is a sale of whisky: 84 Ga. 326. 

If defendant let another have a half pint of whisky and the other was to 
deliver him a fat hen for it . it was a sale : 83 Ga. 616. A sale made through 
a servant is sufficient : 87 Ga. 233. When a sale is complete: 82 Ga. 27„ 
786; 93/43, 47; 88/585. Proof of a sale to either of two named, sufficient: 
87 Ga. 233. 

The indictment need not specify the kind or quantity of liquor sold, the 
price, or the name of the purchaser, nor is it necessary to negative any of the 
exceptions : 89 Ga. 483 ; 93/187. Proof of justification under an exception must 
come from defendant: 93 Ga. 187. "Spirituous, malt or intoxicating." bad 
pleading on special demurrer: 89 Ga. 121. 

Under the charge, in an accusation, that the purchaser was unknown to the 
accuser, there can be no conviction for a sale to a person who was known to 
him when the accusation was preferred: 79 Ga. 498; 87/233. What proof will 
support the charge of a sale to "H. and other persons to the accuser unknown" r 
79Ga.498; 87/233. 

It did not appear here that the sale was made when the law was of force , 
nor before the indictment was found: 80 Ga. 714. This proof sufficient: 
79 Ga. 605; 89/748. 

Refusal to sell to another, not admissible : S7 Ga. 332. 

"Root tonic" shown to be intoxicating: 88 Ga. 254. 

All spirituous liquors are intoxicating, but all intoxicating liquors are not 
spirituous: 87 Ga. 6S7 ; 91/695. 

When a license already obtained is not excepted in a local option law, it is 
revoked : 82 Ga. 224. 

State not compelled to elect, where several sales are charged : SS Ga. 254. 

In Monroe county: 91 Ga. 227. 231. In Laurens county: 88 Ga. 635. 

§452. Disqualification and forfeiture of license for violation of liquor Aet ^Jf 80-1, 
laws. If any vender of intoxicating liquors shall be convicted of the 
violation of any law controlling or regulating the liquor traffic, it 
shall be a part of the sentence that his license shall be forfeited and 
that he shall be disqualified from selling any form of intoxicating 
liquors for the term of one year from the date of the sentence, in his 
own name or right as agent or otherwise; and if he shall sell, or 
become in any way interested in the sale of, such liquors after his 
license has been revoked, he shall be guilty of a misdemeanor. 



ARTICLE 15. 

VAGRANTS. 



§453. (4560.) Vagrancy defined. Vagrants are — St?i8§Hs 

1. Persons wandering or strolling about in idleness who are able p.:: 34 - ~ 

° 1S<0, p. 39. 

to work and have no property to support them. 






§454 



TENTH DIVISION.— ARTICLE 15. 



136 



Acts 1896. 
p. 63. 



ActH 1880, 
P- 



14. 



Vagrants. 



2, Persons loading an idle, immoral or profligate life, who have no 
property to support them, and who are able to work, and do not- 
work. 

8. All persons able to work, having no property to support them, 
and who have not some visible and known means of a fair, honest 
and reputable livelihood. 

4. Persons having a fixed abode, who have no visible property to 
support them, and w r ho live by stealing, or by trading in, bartering 
for, or buying stolen property. 

5. Professional gamblers living in idleness. 

Any person may arrest a vagrant and have him bound over to any 
court of the county having jurisdiction of misdemeanors, and he shall 
be punished as for a misdemeanor, or shall, in the discretion of the 
court, be bound out to some person for a time not longer than one 
year, upon such valuable consideration as the court may prescribe — 
the person giving bond in a sum not exceeding three hundred dollars, 
payable to said court, and conditioned to clothe and feed, and pro- 
vide said convict with medical attendance for and during said time: 
Provided, that the defendant may, at any time before conviction, be 
discharged upon paying costs and giving bond and security in a sum 
not exceeding two hundred dollars, payable to said court, and con- 
ditioned for the good behavior and industry of the defendant for one 
year. 

This section recognizes five distinct classes of vagrants. It was error to 
allow testimony showing that defendant was a professional gambler living in 
idleness, when the accusation did not contain that charge: 51 Ga. 264. The 
accusation must show the class the accused belongs to: 51 Ga. 264. 

The defendant falls under the second class, as it is shown that for two years 
he had been able to work, but had not worked, and that he had no property: 
67 Ga. 723. This testimony is sufficient: 27 Ga. 262. 

This defendant was a licensed preacher, but had no church and no pay ex- 
cept voluntary contributions, and the evidence was not sufficient: 76 Ga. 326. 
Nor was this : 38 Ga. 575. 



The ability to work not satisfactorily shown here: 52 Ga. 574. 

§454. (4588.) Bond in cases of vagrancy. When any person prose- 
cuted as a vagrant shall give bond and security in terms of this Code, 
and shall violate the conditions of the bond, and that fact shall be 
made to appear to the court where the indictment was found, by the 
affidavit of the prosecutor, or any other person, the court shall cause 
a scire facias to issue, calling upon the principal in the bond, and 
his security, to show cause, at the next term of said court, why 
said bond shall not be forfeited, which shall be served as in cases 
of bail; on which an issue shall be made up, if desired by the 
defendant, and tried by a jury; and if it shall appear that the 
defendant has violated the conditions in the bond, judgment shall be 



187 TENTH DIVISION.— ARTICLE 16. 155-458 



Sale of adulterated milk, regulations as to imitation butter and eheefe, unwholesome provl 

awarded on said scire facias against him and his securities for the 

penalty in the bond, with costs of emit. 

§455. (4584.) Solicitor's duty and fees. It shall be the duty of the^JJ 860 * 
solicitor-general to represent the State in all suits on such bonds 
and he shall receive five dollars for prosecuting the scire facias, 

to be taxed in the bill of costs, and also five per cent, of the amount 
recovered on said bond. 



ARTICLE 1(5. 



SALE OF ADULTERATED MILK, REGULATIONS AS TO IMITATION BUTTER 
AND CHEESE, UNWHOLESOME PROVISIONS, ETC. . 

§456. Selling, offering for sale, or delivering, certain hinds of milk, A f t J 5 1895, 
prohibited. No person, corporation or agent shall sell, or expose for 
sale, or deliver for domestic use, any unclean, impure, unwholesome, 
adulterated, or skimmed milk, or milk from which has been held back 
what is known as "strippings," or milk taken from an animal hav- 
ing disease, ulcers, or abscesses, or from an animal within less than 
fifteen days before, or less than five days after, parturition: Provided, 
that this section shall not apply to the sale of buttermilk, or to 
skimmed milk, when sold as such. Milk which is proven by any re- 
liable test or analysis to contain less than three and one-half per 
centum of butter fat, shall be regarded as skimmed or partially 
skimmed milk. 

§457. Imitation butter and cheese defined. Every article, substance, ^% 1895, 
or compound, other than that produced from pure whole milk, or 
cream from the same, made in the semblance of butter or of cheese, 
and designed to be used as a substitute for butter or cheese made 
from pure milk or cream from the same, is imitation butter or imi- 
tation cheese, as the case may be : Provided, the use of salt, rennet 
and harmless coloring-matter for coloring the product of pure milk 
or cream shall not be construed to render such product an imita- 
tion . 

§458. Making, selling, etc., imitation butter or cheese, prohibited. No A ^ t | e . ls95 * 
person shall, by himself or employee or agent, produce or manufac- 
ture or sell, or keep for sale or offer for sale, any imitation butter or 
imitation cheese made or compounded in violation of this Article, 
whether such imitation shall have been made or produced in this 
State or elsewhere; but nothing in this Article shall be construed to 
prohibit the manufacture and sale of imitation butter or imitation 
cheese under the regulations hereinafter provided, not manufactured 
or colored as herein prohibited. 



§§459-462 



TKXTH DIVISION.— ARTICLE 10. 



188 



Sale of adulterated milk, regulations as to imitation butter and cheese, unwholesome provisions, etc. 



\ its - 

p. 66. 



Acts 189f>, 
p. 66. 



ACtS WJ:>, 
p. 66. 



Acts 18&5, 
p. 66. 



§459. Sale tinder pretense of genuineness. No person, by himself or 
agent or employee, shall sell, or otter for sale, any imitation butter 
or imitation cheese, under the pretense that it is genuine butter or 
genuine cheese. And no person, his agent or employee shall sell any 
such imitation, unless he shall notify the purchaser distinctly at the 
time of the sale that it is such imitation, and at the same time shall 
deliver to the purchaser a statement printed in black letters not 
smaller than 4-line pica, in the English language, that the article is 
imitation butter or imitation cheese, and give the name and address 
of its producer, and contain no other words. 

§460. Use of imitations regulated. No keeper or proprietor of a 
bakery, hotel, boarding-house, saloon, restaurant, lunch-counter, or 
other place of public entertainment, or any employee or other per- 
son having charge thereof, or any person furnishing board for others 
than his own family, shall keep, use, or serve therein or elsewhere, 
either as food for his guests, boarders, patrons, customers or em- 
ployees, or for cooking purposes, any imitation butter or imitation 
cheese, unless such keeper, proprietor, or other person in charge of 
such place of entertainment shall keep constantly posted in a most 
conspicuous place in the room or rooms, or other place where such 
imitations shall be served or sold, so that the same may be easily 
seen and read by any person in such room or place, a white card not 
less than ten by fourteen inches in size, on which shall be printed, 
in the English language, in plain, black Roman letters, not smaller 
than one inch in height and one-half inch in width, the words, 
" Imitation butter used here," or " Imitation cheese used here," as 
the case may be, and said cards shall not contain any other words 
or impressions. 

§461. Use of coloring -matter to produce resemblance, prohibited. No 
person shall coat, powder, or color with anatto or any coloring- 
matter whatever, any substance designed to be used as a substitute 
for butter or for cheese, whereby such substance or product shall be 
caused to resemble butter or cheese, the product of pure milk or 
cream. 

§462. Combining substances to produce resemblances, prohibited. No 
person shall combine any animal fat or vegetable oil, or other sub- 
stance, with butter or cheese, or combine therewith or with animal 
fat, or with vegetable oil, or with a combination of the two, or with 
either one, or with any substance whatever, any anatto or any 
other coloring-matter for the purpose or with the effect of impart- 
ing thereto a yellow color, or any shade of yellow, so that such 
substance shall resemble genuine yellow butter or cheese, nor intro- 
duce any such coloring-matter or any such substance into any of 
the ingredients of which such substitute may be composed: Provided, 
that nothing in this Article shall be construed to prohibit the use of 



189 TENTH DIVISION.— ARTICLE 17. 168-470 



Sale of poisons, opium, morphine, drugged liquors, Illegal compounding of di 

salt, rennet, or harmless coloring-matter for coloring ibe producl 

of pure milk or cream from the sarin:. 

§468. Marking substitutes. Every persoo who lawfully manuf ac- ^Jj 8 "' 
tures any substance designed to be used as a subslil ate for butter or 
for cheese, shall mark by branding, stamping, or stenciling upon the 
top and side of each tub, box, or other vessel in which such substi- 
tute shall be kept, or in which it shall be removed from the place 
where produced, in a clear and durable manner, in the English lan- 
guage, the words "Substitute for butter," or " Substitute for 
cheese," as the case may be, in printed letters, in plain Roman 
type, each of which shall be not less than one inch in height and 
one-half inch in breadth. 

§464. Possession of substitute regulated. No person shall have in A p ct £ 6 mr '" 
his possession or control, except for the actual consumption of him- 
self or family, any substance designed to be used as a substitute for 
butter or cheese, unless the vessel containing it shall be marked as 
required in the preceding section. 

§465. Punishment. A violation of any of the foregoing provisions Act | f . 1895 - 
of this Article shall be a misdemeanor. 

§466. (4550.) Selling unwholesome provisions. Any person selling ^ s b i£J?6. 
the flesh of a diseased animal, or other unwholesome provisions, p- 233 - 
shall be guilty of a misdemeanor. 

§467. (5451.) Unwholesome bread or drink. Any person selling ^t?i£i, 
unwholesome bread, drink, or pernicious and adulterated liquor, p- 233 - 
knowing them to be so, shall be guilty of a misdemeanor. 

§468. Sale of adulterated food or drink, without giving analysis. If A f t f^ 882 " 3 ' 
any person, in his own right, or as agent for another, shall willfully ^ r 
and knowingly sell or offer for sale any adulterated article of food 
or drink, unless the package or vessel containing the same has at- ^ 
tached thereto a true analysis of the article therein contained, and 
notice thereof given to each purchaser, when such article may be 
offered for sale, that it is adulterated, he shall be guilty of a misde- 
meanor. 

§469. Duty of grand jury. The grand juries in the several coun- Aet ^ ss " 2 " 8 - 
ties shall diligently inquire into and true presentments make of all 
violations of the preceding section. 



ARTICLE 17 



BALE OF POISONS, OPIUM, MORPHINE, DRUGGED LIQUORS, ILLEGAL COM- 
POUNDING OF DRUGS, ADULTERATED PREPARATIONS. 

§470. (4557 a.) Sale of poisons. No person shall furnish, by retail. Act .? 1S7 ' 
any poison enumerated in Schedule "A" and k 'B," as follows, to wit: 



§§471-475 



TENTH DIVISION.— ARTICLE 17. 



140 



Sale of poisons, opium, morphine, drugged liquors, illegal compounding of drugs, ete. 



Acts 1860, 
p. 55. 
1876. p. 24. 



Acts 1876, 
p. 24. 



Acts 1876, 
p. 24. 
1895, p. 63. 



Acts 1887, 
p. &7. 



Acts 1884-5 
p. 134. 
p. 63. 



Schedule "A." — Arsenic and its preparations, corrosive subli- 
mate, white precipitate, red precipitate, biniodide of mercury, 
cyanide of potassium, hydrocyanic acid, strychnia, and all other 
poisonous vegetable alkaloids and their salts; essential oil of bitter 
almonds, opium and its preparations, except paregoric and other 
preparations of opium containing less than two grains to the ounce; 

Schedule "B." — Aconite, belladonna, colchicum, conium, mix 
vomica, henbane, savin, ergot, cotton root, cantharides, creosote, 
digitalis, and their pharmaceutical preparations; croton oil, chlo- 
roform, chloral hydrate, sulphate of zinc, mineral acids, carbolic 
acid, and oxalic acid; 

Without distinctly labeling the bottle, box, vessel or paper in 
which said poison is contained, and also the outside wrapper or cover 
thereof, with the name of the article, the w r ord "Poison," and the 
name and place of business of him who furnishes the same, nor un- 

38 upon due inquiry it be found that the person to whom it is 
delivered is aware of its poisonous character, and represents that 
it is to be used for a legitimate purpose. 

§471. (455Tb.) Druggists should keep books. No licensed or reg- 
istered druggist or pharmaceutist shall sell or deliver any of the 
poisons included in Schedule "A" without, before delivering the 
same, causing an entry to be made in a book kept for that purpose, 
stating the date of the delivery, the name and address of the person 
receiving the same, the name and quantity of the poison, the pur- 
pose for which it is represented by such person to be required, and 
the name of the dispenser. Such book shall be always open for in- 
spection by the proper authorities, and be preserved for reference for 
at least five years. 

§472. (4557 c.) On prescriptions. Nothing in the preceding sec- 
tions shall apply to the dispensing of poisons in not unusual quan- 
tities or doses, upon the prescriptions of practitioners of medicine. 

§473. (4557 d.) Penalty. Any person violating the provisions 
of the three preceding sections shall be punished as for a misde- 
meanor. 

§474. Sale of opium to certain persons. If any druggist, pharma- 
ceutist, or other person selling opium and its preparations, by retail, 
shall sell, give or furnish, directly or indirectly, opium, or its prep- 
arations, containing more than two grains of opium to the ounce, in 
any quantity, to any person habitually addicted to its use, after writ- 
ten notice from the near relative of such person that he is habitually 
addicted to its use, except upon the written prescription of a physi- 
cian setting forth the necessity of its purchase and showing the good 
faith of the prescription, he shall be guilty of a misdemeanor. 

§475. How morphine shall be wrapped and labeled. If any druggist, 
or other dealer in drugs and medicines, shall sell or offer for sale 



141 TENTH DIVISION.— ARTICLE 17. 176-488 



Sale of poisons, opium, morphine, drugged liquors, Illegal compounding oi <i: 



any sulphate or other preparations of morphine in a bottle, vial, en- 
velope or other package, unless it is wrapped in a scarlet paper oi 

envelope, and unless the bottle or vial also has on it a SCarlel label, 
lettered in white letters, plainly naming the contents of the bottle 
or vial, he shall be guilty of a misdemeanor. 

§470. (1582.) Selling drugged Uquors. Any person who shall sell, ■■ 
or offer to sell, any Liquor, wine or spirits, or vinegar, knowing the*****'** 
same to contain any strychnine or other poisonous drug, or offensive 
matter injurious to health by drinking or other use, or who shall sell 
or offer to sell the same after notice shall be given him as required 
by section 1582 of the Civil Code, shall be indicted in the superior 
court and be punished as for a misdemeanor. 

§477. (1583.) Evading inspection of liquors. If any person shall 
refuse, or in any way prevent an inspector of licpiors from making 
the examination and inspection required by law after a second de- 
mand made by such inspector, such person shall, upon indictment, 
be punished as in the preceding section: Provided, the inspector 
shall make the second demand in the presence of a competent witness, 
and prove the same by said witness on the trial. 

§478. (1585.) Manufacturing drugged liquors. If any person shall 
manufacture any drugged, poisonous or other deleterious and offen- 
sive liquors, wine or spirits, or vinegar, or adulterate any liquor, 
wine or spirits, or vinegar, with poisonous material, he shall be in- 
dicted in the superior court, and punished as for a misdemeanor. 

§479. (1587.) Selling liquors without inspection. When an inspector ^ ct |g 1896, 
is appointed in any city or town, and due notice given of such ap- 
pointment, any vender of liquors, in any quantity, who shall offer 
the same for sale before or without inspection, or a bona fide effort to 
have the same inspected, shall be punished as for a misdemeanor. 

§480. Compounding or vending drugs, etc., illegally. Any person ^fgj 880 " 1 ' 
who shall engage in the compounding or vending of medicines, drugs 1895 * p- 63 - 
or poisons, without first having complied with the law authoriz- 
ing the same, or shall register fraudulently, shall be punished as for 
a misdemeanor. In prosecutions under this section, the burden 
shall be upon the defendant to show his authority. 

§481. Half of fine paid to board of pharmacy. One-half of the "^Jf 80 " 1, 
fines collected from convictions under the preceding section shall be • t 2 B » pp - 91 - 
paid to the board of pharmacy to defray the expenses of the same, 
and as compensation for their services. 

§482. Adulterated preparations . If any person shall manufacture Acts p^ S r l :, 
for sale, offer for sale, or sell, any drug, medicine, chemical. or lsso ~^ 
pharmaceutical preparation, which is adulterated, he shall be pun- 1895 - p- 8E - 
ished as for a misdemeanor. 

§483. Adulteration defined. A drug, medicine, chemical or phar- Acts 9 1 ^ S9 - ) 
maceutical preparation shall be deemed to be adulterated: (1) If. 



g§ 184-487 TENTH DIVISION.— ARTICLE 18. 142 

Illegal practice of medicine and dentistry, and medical college diplomas. 

when Bold under or by a name recognized in the U. S. Pharma- 
copoeia, it differs from the standard in strength, quality or purity laid 
down therein. (2) If, when sold under or by a name not recognized 
in the r. S. Pharmacopoeia, but which is found in some other 
standard work, it differs materially from the standard of strength, 
quality or purity laid down in such work. (3) If its strength, 
quality or purity falls below the professed standard. 
^Jfaifw 6^84« Sample* for analysis. Every person manufacturing, offer- 
ing for sale, or selling any drug, medicine, chemical, or pharma- 
ceutical preparation, shall furnish to the State board of pharmacy, 
or any person interested or demanding the same, who shall tender 
him the value of the same, a sample sufficient for the analysis of 
any such drug, medicine, chemical, or pharmaceutical preparation 
which is in his possession. On complaint being made, the board of 
pharmacy is empowered to employ an expert chemist or analyst to 
examine into the so-claimed adulteration, and report upon the 
result of his investigation, and if said report justify such action, the 
board shall cause the prosecution of the offender. 



ARTICLE 18. 



ILLEGAL PRACTICE OF MEDICINE AND DENTISTRY, AND MEDICAL COLLEGE 
Z^~~Jr-TT&*~- -I - /X> DIPLOMAS. 

A pp 8 88 9 89 §485. (1409e.) Practicing medicine or surgery illegally. Any 
person who shall fail to register or who shall practice medicine or 
surgery in violation of the provisions of the Civil Code, shall be guilty 
of a misdemeanor. 

"pX 1880 " 1 ' §486. (4562 a.) Diplomas by medical colleges. If the faculty or 
,; p Q.f 2 - officers of any medical college shall grant or issue a diploma to any 
student of medicine or other person, unless said student or other per- 
son shall have attended two or more full courses of study in some 
regularly chartered medical college in good standing, and shall have 
submitted to and passed a creditable examination by the faculty or 
professors of said college upon all the branches usually taught in 
medical colleges, they shall be punished as for a misdemeanor. The 
fine, when collected, shall be paid into the State treasury, to be used 
for educational purposes only. Nothing in this section shall prevent 
a medical college from graduating a student who has taken two 
courses of lectures, if he was not absent more than one-fourth of the 
term or course. 

% 'y/ 880 *' §487. Judge* shall give this in charge. It shall be the duty of judges 

i&4-5,p.62. G f the superior courts, in counties where medical colleges are located, 
to give the preceding section in charge to grand juries, whose duty it 
shall be to see that the same be enforced. 



L48 TENTH DIVISION.— ARTICLES 19,20. -408 



importation and purchase of second band clothing. Putting carcasses ol animals In - 

§488. (1416.) Illegal practice of dentistry. Any person who shall, ^ 

in violation of law, practice dentistry for a fee or reward, shall be : " 
guilty of a misdemeanor. 

§489. (1417.) Onus on defendant to show authority. On 1 rial of such A ^'^ H12 ' 
indictment, it shall be incumbent on the defendant to show thai he- 
lms authority, under the law, to practice dentistry, to exempt him- 
self from such penalty. 



ARTICLE 19. 

IMPORTATION AND PURCHASE OF SECOND-HAND CLOTHING. 

§490. Importation and purchase of second-hand clothing. If any per- Act ^ 884 " 5 - 
son shall bring into this State for sale, or shall buy, barter or receive 1895 > P- % - 
for the purpose of selling, any second-hand or cast-off clothing, he 
shall be punished as for a misdemeanor. 

§491. Exception. The foregoing section shall not apply to second- Acts i#h-5, 
hand clothing which shall be accompanied by a certificate from the 
proper officer of the board of health of the place from which such 
clothing may have been shipped, stating that it has been properly 
disinfected, that there is no danger from it of spreading contagious 
diseases, and giving the character and number of garments and the 
date when they were disinfected, which certificate shall be recorded 
in the clerk's office of the superior court of the county where the 
clothing is offered for sale and before the offer is made. 



ARTICLE 20. 



PUTTING CARCASSES OF ANIMALS IN STREAMS, AND FAILING TO BURY 
DEAD ANIMALS AND DECAYING MATTER. 

§492. Putting carcasses of animals in streams. If any person shall Actsisoo-i. 
place the carcass of a horse, cow, sheep, goat, dog, or other animal 
in any stream, he shall be guilty of a misdemeanor. 

§493. Owner must bury dead animals and fowls. If a domestic ani- Act | 6 1S95 - 
mal or domestic fowl should die without the corporate limits of a town 
or city of this State, and the owner thereof shall fail or refuse to bury 
the carcass, deep enough to prevent stench therefrom, within three 
hours after notice of the death and the location of the carcass, he 
shall be guilty of a misdemeanor. The carcass of such animal may, 
within three hours after such notice, be removed and at once manu- 
factured into fertilizers. 



g§494-499 TENTH DIVISION.— ARTICLES 21, 22, 23. 144 



Gutting turpentine boxes. Furnishing cigarettes to minors. Contagious diseases and quarantine. 

K ••'->■■■ £494. Owner must bun/ stale or decaying matter. If the owner of 
stale or decaying vegetable or animal matter, situated within this 
State and without the corporate limits of a town or city, shall fail or 
refuse to bury it, so deep as to prevent any stench therefrom, within 
three hours after notice that it has become offensive to the smell or 
dangerous to health, he shall be guilty of a misdemeanor. 

.\ets> §495. In what counties of force. The provisions of the two preceding 

seet ions shall be of force only in counties in which there then is a city 
of sixty thousand or more inhabitants, according to the last Federal 
census. 



ARTICLE 21. 

CUTTING TURPENTINE BOXES. 



Act i« S87, §496. Time for cutting turpentine boxes. Any person who shall cut 
1889, p. i5o. turpentine boxes at any other season of the year than from the fif- 
teenth of November to the fifteenth of March, on his own land or the 
land of another, shall be guilty of a misdemeanor. The fine shall be 






paid, over to the county treasurer. 



ARTICLE 22. 



FURNISHING CIGARETTES TO MINORS. 



ActS i4? 9 ' §497. Furnishing cigarettes to minors. If any person, by himself, 
agent, or in any other way, shall furnish a minor with cigarettes, 
cigarette tobacco, cigarette paper, or any substitute therefor, he 
shall be guilty of a misdemeanor. 



£^^^ u^UkA^X^*/ ARTICLE 23. ^^^ kM* . 

CONTAGIOUS DISEASES AND QUARANTINE. 

Acteisee, §408. (1884.) Proclamation of Governor as to contagious diseases . The 
Governor may, by proclamation, whenever he shall deem it neces- 
sary, give such orders to prevent the spread of contagious or infec- 
tious diseases within the State, and make such appointments and 
regulations concerning the same, as shall by him be deemed proper, 
and be stated in such proclamation, and any person violating such 
orders or regulations may be punished as for a misdemeanor. 

Actei896, §400. (1880.) Persons concealing smallpox. Any physician or other 
person who shall conceal a case of smallpox, or varioloid, or any 
modification of the same, within any incorporated city, town, or in 



145 TENTH DIVISION.— ARTICLE 28. 50O-60G 



Contagious discuses and quarantine. 



any county, by not giving immediate* notice thereof to the mayor. 
intendant, or health officer, or ordinary, Hhall be punished as for a 

misdemeanor. 

§500. (4558.) Spreading smallpox. Any physician, surgeon, or 
other person, willfully endeavoring to spread the smallpox, with- 
out inoculation, or by inoculation with matter of the smallpox, or 
using any other inoculation than that called vaccination, unless by 
special commission or authority from the court of ordinary of the 
county where the smallpox shall make its appearance, shall be 
guilty of a misdemeanor. 

§501.(1376.) Quarantine, how prescribed and regulated. The corpo- °°tg 
rate authorities of a town or city may prescribe the quarantine to p '" 
be observed by all vessels arriving within the harbor or vicinity of 
such town or city, and regulations therefor, not contrary to law. 
and such regulations may extend to all persons, goods and effects 
arriving in such vessels, and to all persons going on board of the 
same. Any person violating such regulations, after personal notice, 
or after other notice thereof, given for five days, in such manner as 
may be prescribed by such corporate authorities, or in the absence 
of any mode so prescribed, by notice of such regulation, for five days, 
in some newspaper in such town or city, or, where there is no news- 
paper, by notice posted up at some public place in such town or city, 
for the same length of time, shall be guilty of a misdemeanor: Pro- 
vided, nothing herein contained shall prevent the infliction, by the 
corporate authorities having power to pass ordinances or by-laws, 
of such other penalty, not exceeding one hundred dollars fine, in 
lieu of the penalty first above named, as may be prescribed in such 
ordinance or by-law. 

§502. (1378.) Vessels may be removed to quarantine grounds. The ^ ct | 3 1895 ' 
health officer or visiting physician of such town or city may, under 
the direction of the corporate authorities, cause any vessel arriving 
therein, or in the vicinity, if the vessel or cargo is in his opinion 
so Soui-or infected as to endanger the public health, to be removed 
to the quarantine ground or other proper place- to be inspected, and 
any master, seaman, or passenger belonging to a vessel supposed 
to have any infection on board, or from a port where any dan- 
gerous infectious disease prevails, refusing to answer on oath such 
inquiries as may be made by any health officer, relating to any infec- 
tion or disease, shall be guilty of a misdemeanor. 

§503. (1380.) Master of vessel must deliver bill of health, etc. The ^etsisos, 

° X ' " J ' p. DO. 

master of any vessel ordered to perform quarantine shall deliver, to 
the officer appointed to see it performed, his bill of health and man- 
ifest, log-book and journal; if he fails to do so, or to repair, in 
proper time, after notice, to the quarantine ground, or shall depart 
thence without authority, he shall be punished as for a misdemeanor. 
10 



1504-500 TENTH DIVISION.— ARTICLE 24, 146 

The public safety. 



'V^ 896 ' §504, (1881.) Inland traveler s compelled to perform quarantine . Any 
person coming into town or city by land from a place infected with 
a contagious disease, may be compelled to perform quarantine by 
the health officer, under the direction of the corporate authorities, 
and restrained from traveling until discharged; and any person thus 
rest rained, traveling before he is discharged, may be punished as for 
a misdemeanor. 

§505. (1882.) Duty of pilots before entering on board of vessels. It 
shall be the duty of any pilot, before entering on board of any vessel, 
to make strict inquiry of every master or commander of the same as 
to the state of health in such vessel, and in case it be found that any 
malignant, contagious or infectious disease is on board such vessel, 
and such pilot shall enter therein, he shall be punished as for a mis- 
demeanor, and removed from office; and any such master or com- 
mander refusing to answer any such reasonable inquiry, or giving 
false information in answer, shall be guilty of a misdemeanor. 

Ac % 1S95, §506. (1383.) Persons on board of vessels shall observe quarantine. If 
any person on board such ship or vessel in which such disease shall 
exist, or whilst such ship or vessel is performing quarantine, shall 
come, or be permitted to come, on shore or land from such vessel, 
without permission from the proper authority, he shall be guilty of 
a misdemeanor; and any person going on board such vessel (except 
the health officer or visiting physician) and returning without such 
permission, shall be liable to the same penalty. 

Act 233 865 " 6, §507- (1385,4559.) Violation of quarantine . Any person who shall 
come into this State, by land or water, from any place infected with 
a contagious disease, and in violation of quarantine regulations, shall 
be indicted in any county in which he may be found, and shall be 
punished as for a misdemeanor. 



ARTICLE 24. 

THE PUBLIC SAFETY. 

Actcri882-B, §508. Discharge of firearms on and near public highways. If any 
^fW?i-c->w **" person shall between, dark and daylight, willfully and wantonly fire 
P* iv ;6nj2/ off or discharge any loaded gun or pistol on a public highway, and 
' within fifty yards of a public highway, except in defense of person 
or property, or on his own premises, he shall be guilty of a misde- 
meanor. 

§509. Hotel-keepers, etc., on beaches, required to keep life-boats, etc. 



p. 228. 



The proprietor or keeper of every hotel, boarding-house, or other 
public house or bath-house on the seacoast, where the public may 
resort for purposes of surf-bathing, shall at all times, during the 
surf-ba thing season, keep and maintain at their respective establish- 



117 TENTH DIVISION.— ARTICLE 24. j 510-618 

The i>n bile safety. 

merits, in full view and accessible to bathers and guests of such 

house, a suitable and seaworthy life-boat or life-raft, fully equipped 

with oars, oar-locks, life-preservers and life-ropes, and mounted upon 
a proper wheeled carriage, which boat or raft and appliances shall 
be kept at all times ready for instant use, in case of emergencies 
to bathers requiring the use thereof; and in default of complying 
with the provisions of this section, sucli proprietor or keeper .-1ml 1 be 
guilty of a misdemeanor, and in addition to the penally for such 
offense, he shall not have the right to collect any charge or debt 
from any guest of such house, the consideration of which is board, 
lodging, or other service rendered such guest during the surf-bathing 
season by the proprietor or keeper. 

§510. Failure to comply with requirements as to buildings more than two A J;^i$ 9 ' 
stories in height. If the owner of a building more than two stories in JJj*- M 
height shall fail to comply with the requirements of section 2622 of 
the Civil Code, and, after receiving the notice prescribed in section 
2623 of the Civil Code, shall refuse or neglect to make the altera- 
tions specified in said written notice, he shall be guilty of a misde- 
meanor. 

§511. Rocking or shooting at or in cars. Any person who shall throw Act f g 892, 
a rock or other missile at, towards, or into any car of any passenger- 
train upon any railroad or street railroad, or shoot any gun, pistol, or 
firearms of any kind at, towards, or into any such car, or shoot while in 
such car any gun, pistol or other weapon of any kind, shall be guilty 
of a misdemeanor. 

§512. Wrecking, or attempting to wreck trains, cars, etc. Any per- Act ^ 8Si " 5 ' 
son who shall by any device whatever wreck, or attempt to wreck, a 
railroad train, locomotive, car, coach, or vehicle of any kind, when 
used or run on any railroad track for the purpose of travel or trans- 
portation, or assist, or advise it to be done, shall be punished with 
confinement in the penitentiary for life, unless the jury trying the 
case shall recommend the prisoner to mercy; in that event he shall 
be punished by confinement in the penitentiary for not less than five 
nor longer than ten years. If the conviction is founded solely on 
circumstantial testimony, the presiding judge, without the recom- 
mendation of the jury, may in his discretion sentence the prisoner 
to confinement in the penitentiary for not less than five nor longer 
than ten years. 

Applies to all railroads whether duly chartered or not: 82 Ga. 643. 

To constitute a criminal attempt to wreck a train, etc., when no wrecking 
occurs, an intention or purpose to wreck is essential. Actual wrecking, if ac- 
complished by any illegal act tending to produce such a disaster, would be a 
crime : 94 Ga. 588. 

§513. Murder if death ensues. If death ensues to any person from Ae ^LJ aBW « 
the acts mentioned in the preceding section, the offender shall be 
guilty of murder. 



8S 514-520 TENTH DIVISION.— ARTICLE 24. 148 



The public- safety. 



Acts 1S74. 
p. W. 



§514. (4585.) Using explosive oils on passenger-cars prohibited. Any 
officer or employee of a railroad company, who shall light a passen- 
ger-car, in which passengers are being transported, by burning any 
explosive oil in lamps or otherwise, or shall burn such oil in such 
passenger-car; or any officer having charge of such passenger-car, 
who shall permit such burning of explosive oil, shall be guilty of a 
misdemeanor. Any such officer or employee may be indicted in any 
county through which such passenger-car, lighted in violation of this 
section, shall pass. 

A p 0t i3^~ "' §'"^- Trains must stop within fifty feet of each railroad crossing. 
Whenever the tracks of separate and independent railroads cross 
each other, all engine-drivers and conductors must cause the trains 
which they respectively drive and conduct to come to a full stop 
within fifty feet of the place of crossing, and then to move forward 
slowly. The train of the road first constructed and put in opera- 
tion shall have the privilege of crossing first. A person violating 
the provisions of this section shall be guilty of a misdemeanor. 
^m? 612 ' §516. (TOO.) Neglecting to erect blow-posts. Should any railroad 
ijBSs'p'Ss' company fail or neglect to put up the posts required by section 2222 
of the Civil Code, the superintendent thereof shall be guilty of a 
misdemeanor. 
'p^ioi 851 ' 2, §5 IT. (T10.) Failing to blow the whistle. If any engineer fails to 
1895, p. 63. ] 3 i ow the w histle and to check the speed as required in section 2222 

of the Civil Code, he shall be punished as for a misdemeanor. 
"p^ioT 51 "' 2 ' §518. (710.) Within corporate limits, bell to be tolled. Railroad 
Sol' p" es companies shall not be required to blow the whistle of their locomo- 
tives on approaching crossings or public roads within the corporate 
limits of any city, town, or village, but in lieu thereof the engineer 
shall signal the approach of the train to such crossings and public 
roads by tolling the bell of the locomotive, and on failure to do so 
he shall be punished as for a misdemeanor. 
Cobb, 850- £519. (4487.) Intruding on railroad tracks. Any person intruding 
A p Ct 2Q 1875 ' unlawfully upon the constructed track of a railroad company, or 
the State railroad, contrary to the will of the company or superin- 
tendent, shall be guilty of a misdemeanor. 

Merely to walk upon the track not indictable: 71. Ga. 428. 
Cobb, 85i. g520. (4488.) Destroying, injuring or obstructing railroads. If any 
person shall willfully and maliciously destroy, or in any manner 
injure, or obstruct, or shall willfully and maliciously cause, or aid 
and assist, or counsel or advise any other person to destroy, or in 
any manner to injure, or obstruct any railroad, or branch thereof, 
or any bridge connected therewith, or any vehicle, edifice, right or 
privilege granted by charter, and constructed for use under author- 
ity thereof; or if an unauthorized person shall turn, move, or in 
any manner interfere with any gate, switch, sideling, or other ap- 



149 TENTH DIVISION.— ARTICLE 25. | 521-688 

Public convenience. 

purtenances to any such railroad, he shal] be imprisoned in the 

penitentiary not Less than (our nor Longer than eight yours. 

A street railroad operated by horse power is within this section : 74 Ga. 878. 
Effect on this section, of fche amendment to the preceding section, striking 
"chartered" therefrom, explained: 89 Ga. 421. 

§521. (4488.) When death ensues. If death ensues from the acts 00 **' 851 - 

mentioned in the preceding section, the offender shall be guilty of 
murder, and punished accordingly. The penalties under this and 
the preceding section shall not interfere with the offender's liability 
for damages. 



ARTICLE 25. 

PUBLIC CONVENIENCE. 

§522. (4585.) Water and light on railroads. Railroad companies ^J^ 863 " 4 ' 
shall keep in each passenger-car, or in any car in which passengers 1895 » p - 63 - 
are transported, an adequate supply of good, pure drinking water at 
all hours during the day and night, and lights during the night for 
the use of passengers; and upon failure thereof, shall be punished 
as for a misdemeanor. 

§523. (4585.) Conductors failing to furnish water and lights. Any ^f^ 863 ' 4 ' 
conductor or agent of a railroad, who, after being requested by a 
passenger to furnish a sufficient supply of water to the passengers in 
each car, in the day or night, and light at night, shall pass any depot 
or station without so doing, may be indicted in any county through 
which said railroad runs, of which he is agent or conductor, and 
shall be punished as for a misdemeanor. 

§524. (4585.) Judges to give these sections in charge. The judges of-^y^®" 4 ' 
the superior courts shall give the two preceding sections in special 
charge to the grand juries of their respective courts. 

§525. (4586.) Carriers of passengers to furnish equal accommodations Actsisro, 
to all. Common carriers of passengers for hire shall furnish like is95, p. 63. 
and equal accommodations to all persons, without distinction of 
race, color, or previous condition; and any officer, employee or 
agent of a railroad company, steamboat company, or any incorpo- 
rated company who are common carriers of passengers for hire, or 
any persons who are common carriers, violating the provisions of 
this section, shall be punished as for a misdemeanor. 

§526. Separate cars or compartments for white and colored passengers. Actsisao-i, , 
Railroads doing business in this State shall furnish equal accom- xJ»jjtu^*< 
modations, in separate cars, or compartments of cars, for white and C^ * 7 ' DJ* // 
colored passengers, and when a car is divided into compartments, 
the space set apart for white and colored passengers, respectively. 



ch*-i 



§§527^584 TENTH DIVISION. —ARTICLE 25. 150 

Public convenience. 

may be proportioned according to the proportion of* usual and ordi- 
nary travel by each on the road, or line on which the cars are used. 

AcI [- I 7 SVv '" h §527. Employees must assign passengers to their cars. Conductors 
or other employees in charge of such cars, shall assign passengers 
to their respective cars or compartments of cars, and conductors of 
dummy, elect ric and si reet cars shall assign all passengers to seats on 
the ears under their charge, so as to separate the white and colored 
races as much as practicable, and conductors and other employees 
of railroads, and conductors of dummy, electric and street cars 
shall have police powers to carry out the provisions of this and the 
preceding section. 

"V ^r: 890 l ' §528. Remaining in car or seat other than that assigned. Any pas- 
senger remaining in any car or compartment or seat, other than that 
to which he may have been assigned, shall be guilty of a misdemeanor. 
The conductor and any and all employees on such cars have power 
to eject from the train or car any passenger who refuses to remain 
in such car or compartment or seat as may be assigned to him. 

'V^oT 890 * 1 ' §529. Permitting white and colored passengers to occupy same car. 
The officers or employees having charge of such railroad-cars shall 
not permit white and colored passengers to occupy the same car or 
compartment, and a violation of this section shall be a misdemeanor. 

"p^iot 890 " 1 ' §530. Seats, lights and ventilation. Companies operating and using 
compartment cars or separate cars shall furnish to the passengers 
comfortable seats, and have such cars well and sufficiently lighted 
and ventilated, and a failure to so do shall be a misdemeanor. 

A p Ct i57 8901, §^31. Exceptions. The provisions of the five preceding sections 
shall not apply to nurses or servants in attendance on their em- 
ployers, nor to sleeping-cars. 

Acts im' §532. (635.) Overseer failing to do his duty. If a road overseer omits 
to do his duty with respect to the roads, bridges and causeways under 
his charge, for thirty days from the time the necessity for any imme- 
diate work occurs, unless hindered by extreme bad weather or other 
providential cause, he is guilty of a misdemeanor, and is also liable 
for all damages at the suit of any person injured by such omission. 

§533. (050.) Altering or obstructing the public road. If any person 
k ^*v***« shall alter a public road, or cut a ditch across, or alter the location 
An . /ip of a bridge, or make a new bridge necessary by his act, without first 
obtaining an order therefor, he shall be punished as for a misde- 
meanor, and shall be liable by suit for all damages any person may 
sustain thereby. 
Act ^ b{K>] ' §534. Encroaching on registered road. If any person shall encroach 
upon a public road that has been registered as required by law, by 
erecting thereon a fence or building, or other structure, or if he 
shall in any other manner appropriate to his own exclusive use a 



151 TENTH DIVISION.— ARTICLE 26, §§585-688 

Regulations as to farm products. 

part of any such road, and shall fail to remove such fence, building 
or other structure or encroachment, within two days after being no- 
tified to do so by a road overseer, superintendent of roads, or road 
commissioner of the county, he shall be guilty of a misdemeanor. 

§535. Obstructing registered road. If any person shall obstruct a A ' :t j*** -1 ' 
road registered as aforesaid, by building a fence, or felling a tree, or 
cutting a ditch in or across any part of it; or shall make' or place 
in or across an} r such registered road, or part thereof, an obstruction 
of any kind which renders the use of the road unsafe or inconven- 
ient; or shall dig or plow up the surface of a registered public road 
or remove any dirt or rocks from the same; or shall stop up, fill 
with dirt or obstruct any side-ditch or drain of a public road, he 
shall be guilty of a misdemeanor: Provided, that this section shall 
not prohibit the duly authorized acts of the public officers of the 
county. 

§536. Opening and leaving open gates on a public highway. After a Actsy*&4-5, 
gate has been erected on a highway or public road according to the 
provisions of section 1769 of the Civil Code, if any person shall 
open and leave it open or in a condition for stock to enter, he shall 
be guilty of a misdemeanor. 



ARTICLE 26. 



REGULATIONS AS TO FARM PRODUCTS. 



§537. (1595.) Penalty for failing to pay accepted bill or draft. If a Aets J| 
bill of exchange or draft specifies, in the body thereof, the amount 
for which it is drawn and the time when it becomes due, that it is 
drawn against certain bales of cotton, enumerating them, and refer- 
ring to their marks in the margin, and that they were sent to the 
drawee subject to the payment of the bill or draft to the payee or 
his order, to whom the title was conveyed, and such bill or draft is 
accepted in writing by the drawee, and he shall fail or refuse after 
such acceptance to pay to the payee or his order, at the maturity of 
the paper, the amount of the proceeds of the sale of the cotton, if 
sold by him, or shall fail or refuse to deliver said cotton to the 
payee or his order when demanded after such failure to pay, he shall 
be punished by confinement in the penitentiary for not less than one 
nor more than five years. 

8538. (1596, 1597, 1598.) Not to be convicted, when, etc. No person Aotsis59. 

<■> ^ ' ' ' _ ' r pp. 61, 62. 

shall be convicted under the provisions of the preceding section, if 
he can show that the cotton received by him was destroyed by acci- 
dent, or that he was fraudulently or forcibly deprived of the posses- 
sion thereof, or of its value after it was sold. 



&§ 539-543 TENTH DIVISION.— ARTICLE 26. 152 

Regulations as to farm products. 

The acceptance in writing of the bills of exchange or drafts shall 
be held as prima facie evidence of the value of the receipt by the 
acceptor of the cotton specified therein, and prima facie evidence of 
the value being the amount specified in the bill or draft. 

If such bill or draft shall be drawn on, and accepted by a mercan- 
tile copartnership in the name of the firm, each of the copartners 
shall be held prima facie liable to all the provisions of the preceding 
section. 

Acts l^>4-d, 

pp. 4o. 52. §539. (1594.) Failing to pay for cotton, corn, etc. Any person 
engaged, either on his own account or for others, in the business of 
buying cotton, corn, rice, crude turpentine, spirits turpentine, rosin, 
pitch, tar, or other products sold by planters and commission mer- 
chants on cash sale, who shall buy such articles on sale from a plan- 
ter or commission merchant for cash, and shall fail or refuse to pay 
for, and shall make way with or dispose of the same before he shall 
have paid therefor, shall be imprisoned in the penitentiary for not 
less than one year, nor more than five years. 

Acteisue, §540. Procuring consignments of farm products and failing to pay . Any 
** person who shall solicit or in any way procure consignments of fruits, 
^JM*." &t>. **f< melons, vegetables, butter, eggs, poultry, or other farm, orchard and 
r n q dairy products in this State, whether for themselves or as agents or 
employees of others, to irresponsible persons, firms or corporations, 
to be sold on commission, and who shall fail to account for, and pay 
to the rightful owner the whole net proceeds arising from the sale of 
such products so consigned, said person soliciting or otherwise obtain- 
ing such consignments shall be guilty of a misdemeanor. 

Acts 1895, §541. Buyer giving worthless checks. Any person who shall buy any 
of the products mentioned in the preceding section, either for them- 
selves or others, and give a draft, check or order in payment of such 
products, and the payment of the draft, check or order, is refused by 
the drawee, by which the seller sustains loss, such buyer shall be 
guilty of a misdemeanor. 

ActeW76, §542. (4562 b.) Purchase of farm products from tenants. Whenever 
any person shall buy any corn, or cotton in the seed, from persons 
residing on the land of another, as tenant or laborer of such other 
person, or from the agent of such tenant or laborer, when said ten- 
ant or laborer had no right to sell, after notice of such disability to 
sell has been given in writing by the landlord, or employer, to such 
buyer, the person so buying shall be guilty of a misdemeanor. 

§548. (4502 c.) Illegal purchase of seed cotton. If any person shall 
buy or sell any seed cotton after sunset and before sunrise, or receive 
or deliver any such cotton after sunset and before sunrise, which has 
been sold or to be sold in pursuance of such delivery, he shall be guilty 
of a misdemeanor. 



158 TENTH DIVISION.— ARTICLES 27, 28. 544-649 



Sale and us<; of oleomargarine. Formulae! for composting fertiliz 

§544. (4502(1.) Cutting bagging from cotton, [f any person own ii l , ' 1 > 

or controlling a cotton compress shall out or take, without the 
owner's consent, any bagging from the heads or sides of a bale of 
cotton which they may have in charge for the purpose of compressing 

the same, he shall be guilty of a misdemeanor. 

§545. (4562 e.) Illegal charge for weighing cotton. Ii' any scales- A p ot £ 6 1880 " 1, 
man, salesman, or other person engaged in the business of weighing"*' l, - p,: '- 
cotton bales, shall charge or receive more than ten cents per bale for 
weighing the same, or charge or receive for reweighing any bale of 
cotton which has once been taxed ten cents for weighing, more than 
five cents for such reweighing, he shall be guilty of a misdemeanor. 

§546. (4562 e.) Employer consenting, embraced. The preceding sec- A p ct | 9 1880 " 1, 
tion shall embrace a merchant, factor, or other person in whose 
employment the offender may be at the time of the violation, if the 
illegal charge is made with the consent or knowledge of the employer. 



ARTICLE 27. 

SALE AND USE OF OLEOMARGARINE. 

§547. Sale of oleomargarine without notice. If any manufacturer, A p ct f 2 4 882 " 3, 
merchant, shopkeeper, or other person shall sell or expose for sale 
the product known as "oleomargarine," without first branding, 
marking or labeling it in a legible manner and conspicuous place with 
the word "oleomargarine," so as to be easily observed by persons 
offering to purchase, and also without first informing the person 
offering to purchase that the article is oleomargarine, he shall be 
guilty of a misdemeanor. 

§548. Notice to guests. If the proprietor, keeper or manager of any Act ^ 882 * 3 » 
hotel, inn, restaurant or house of public entertainment, shall know- 
ingly furnish, offer or set before, or permit to be offered, furnished 
or set before his guests, the article known as "oleomargarine" with- 
out first putting his guests on notice by posting in conspicuous places 
in the dining-room, and in all other rooms where the guests of such 
house are accustomed to take meals, and also in the private rooms 
of the guests, notices that can be easily observed and read by the 
guests, in the following words: "This house uses oleomargarine," 
and also by printing said notice on their bills of fare when bills of 
fare are used by such house, he shall be guilty of a misdemeanor. 



ARTICLE 28. 

FORMULAS FOR COMPOSTING FERTILIZERS. 



§549. Sale of formulas for composting fertilizers. If any person shall A <?tsis82-s. 
sell or offer for sale any formula for composting fertilizers, patent 



§§ 550-655 TENTH DIVISION.— ARTICLES 29, 80. 154 

Weights u> be stamped on sacks of flour and meal. Turnpikes, bridges, and toll. 

or otherwise, unless the same has been first submitted to the com- 
missioner of agriculture, ami by him approved, and a certificate of 
approval by the commissioner of agriculture, to be presented by 
salesmen whenever offered for sale, he shall be guilty of a misde- 
meanor. 



ARTICLE 29. 

WEIGHTS TO BE STAMPED ON SACKS OF FLOUR AND MEAL. 

^fif 89 ' §550. Weights to be stamped on sacks of flour and meal. If any miller 
or manufacturer of flour, or corn meal, or any merchant or dealer 
offering said articles for sale, shall fail to stamp or have printed on 
each sack in which either of said articles is packed, in plain figures, 
not less than one and one-half inches in length, the exact weight of 
tli«' contents thereof , he shall be guilty of a misdemeanor. 

Acts. 1889. §551. Exceptions. The preceding section shall not apply to grist 
ground for toll, nor to millers, merchants or dealers, selling flour or 
meal in quantities less than a full sack, or in any quantities when 
sold by weight. 



ARTICLE 30. 

TURNPIKES, BRIDGES, AND TOLL. 

Acts^ 1882-s, §552. Collecting toll on turnpike out of repair. If any owner of a 
1895, p. 63. turnpike road, or keeper of a toll-gate upon a turnpike road, shall 
demand or collect toll from any person for traveling over such road 
when it is not kept repaired, so as to comply with the terms of its 
charter, he shall be guilty of a misdemeanor. 
Acts lSM-o, §553. Turnpikes, maximum grade. The maximum or greatest grade 
of all turnpike roads shall not exceed one foot in fifteen, unless a 
greater or steeper grade has been allowed in the charter heretofore 
granted; and if any owner, gatekeeper or person in charge shall col- 
lect toll on a turnpike road with a grade in violation of this section, 
he shall be guilty of a misdemeanor. 
Act.-iss;.. £554. (688.) Failure to post rates of toll. If the proprietor of a 
ift>&, p.63. bridge, ferry, turnpike, or causeway, where toll is allowed to be 
f-harged, shall fail to fix, in a conspicuous place as near the same as 
practicable, a board on which shall be the various rates of toll, he 
shall be guilty of a misdemeanor. 

x £%}^'''- §555. (087.) Charging excessive toll. If any person shall charge 
1895. p. n. morf . than the lawful rates, or more than indicated by the board, he 



155 TENTH DIVISION.— ARTICLE 81. 88556-561 



Private; insane; asylums, wrongful Imprisonment oi Bane persons, and siding 

is guilty of a misdemeanor, and for tin; second offense, in addition 
to the punishment, he forfeits his franchise. 

§556. (088.) Obstructing a ford, bridge, or ferry. No person author- ^ 
ized to have a bridge or ferry on his own hind will be permitted to P* 68 * 

stop up or obstruct any ford, bridge, or ferry, and upon SO doing he- 
is guilty of a misdemeanor. 

§557. (698.) Collecting loll without authority, etc If any person Aotstt&s, 
demands or receives toll for crossing any ferry, bridge, or causeway, 
or turnpike, after the revocation of his license or forfeiture of his 
charter, or having a right for a ferry allows the banks on either side 
to be out of repair for more than five days at any one time, or to 
provide good and safe boats of a size sufficient for the accommoda- 
tion of the public, furnished with competent and sufficient ferrymen, 
for the safe and speedy passage of all persons, vehicles, horses and 
stock, or in case of a toll-bridge or causeway, fails to keep the same 
in good repair, without reasonable excuse for such failures, to be 
determined by the court, he is guilty of a misdemeanor. 

§558. (694.) Owners of private bridges, etc., liable. The owner of a 
private bridge, ferry, turnpike, or causeway, who passes persons for 
toll, incurs the same liabilities and penalties as those permitted by 
law. 



ARTICLE 31. 

PRIVATE INSANE ASYLUMS, WRONGFUL IMPRISONMENT OF SANE PERSONS, 

AND AIDING ESCAPES. 

§559. Letters of inmates of private insane asylums protected. Any Aet f l 890 " 1 * 
superintendent, officer or employee of a private insane asylum, who ggi p- uo « 
refuses or neglects to comply with, or willfully and knowingly vio- 
lates, any of the provisions of sections 1452, 1453 and 1455 of the 
Civil Code, shall be punished as for a misdemeanor, and shall there- 
after be incapable of holding an office in any asylum in this State. 

§560. Maliciously causing imprisonment of sane person. Any person Aeteisw-i, 
who maliciously causes the imprisonment of a sane person, knowing 1892, p.i«». 
such person to be sane, in any asylum, public or private, shall be 
imprisoned in the penitentiary not more than fourteen years nor 
less than two years. 

§561. Aiding escape of patient from Lunatic Asylum. Any person ^fog 89 *' 
who shall aid or assist, or attempt to aid or assist, a patient to 
escape from the Lunatic Asylum, who has been lawfully committed 
to said institution, shall be guilty of a misdemeanor. 



1 562-566 TENTH DIVISION.— ARTICLES 32,33. 156 



Driving diseased cattle and grazing stock. Impounding animals, breaking a pound, and estrays. 

ARTICLE 32. 

DRIVING DISEASED CATTLE AND GRAZING STOCK. 

Actei880-i, §662. (40:25d.) Driving diseased cattle, and driving cattle into cer- 
tain localities, Any person who shall knowingly drive or move, for 
the purpose of grazing, any cattle having the disease known as 
"murrain/' or having any other distemper or infectious disease, to 
any place other than the place where the cattle at the time are so 
diseased, or driving work oxen or other cattle into or through such 
localities between April fifteenth and October fifteenth annually, 
shall be guilty of a misdemeanor. 

Acts iss-j-3. §563. Driving cattle from infected localities. Any person who shall 
willfully and knowingly drive or move, for the purpose of grazing, 
any cattle from any locality infected with a distemper or infectious 
disease, to any place in this State where cattle are not liable to have 
said disease (unless associated with cattle from localities infected 
with distemper or infectious disease), shall be guilty of a misde- 
meanor. 

Act i4 882 " 3, §564. Driving stock into the State to graze. If any person, either by 
himself or another, shall drive any horses, mules, hogs, cattle, or other 
live stock from another State into any county of this State for the 
purpose of grazing the same, or, after having driven the same into 
any county of this State, shall permit them to graze or run at large 
in any marsh or forest range in any county of this State, he shall be 
guilty of a misdemeanor. 

Acts 1882-3. §565. Exception. The preceding section shall not prevent persons 
owning lands in this State from driving or permitting the driving of 
such stock to their own premises there to be kept. 



ARTICLE 33. 

IMPOUNDING ANIMALS, BREAKING A POUND, AND ESTRAYS. 

Acts 1882-3, §566. (1453.) Illegally impounding an animal, or breaking a pound. 

1805, p. %. If any person shall, under the pretext of sections 1773, 1774 and 1775 
of the Civil Code, unnecessarily or out of mere vexation, take up and 
impound any such animal as is therein described, or, after having 
takf.'ii up and impounded such animal, shall fail to give the notice 
required by law, or to estray it in case the owner is not known or as- 
certained within the time prescribed by said sections, or shall fail to 
give proper care and attention as therein provided, or in any manner 
shall injure or maltreat it, or shall break a pound and release an ani- 
mal which has been legally impounded or estrayed, without having 
first paid all damages that may have been incurred, he shall be pun- 
ished as for a misdemeanor, and, in addition, shall pay the owner of 



157 TENTH DIVISION.— ARTICLES 84,85. 567-671 



Gam<! hikI fin- hunting. Terrapi ns, turtles, fishing, and 03 



such animal, or pound, double the amount of damages actually sus- 
tained by a violation of the provisions of said sections. 

The going into operation of the stock law does not depend on the building 
of a fence around the district: 80 (hi. 7H1. 

§567. (148(5.) Penalty against taker wp of estray. The taker up of <****••• 

an animal according to the provisions of the Civil Code, is Liable to 
the county or the owner, as the case may be, in five times the value 
of the estray, if , after taking it up, he fails to have it appraised and 
returned, or forthcoming, according to law, providential causes only 
excepted; and if he appropriates it to his own use, and fails to pay 
said forfeiture after demand in writing by the ordinary, he is guilty 
of a misdemeanor. - , # & 

ARTICLE 34. S^ 9 ***"^ y- , y 

GAME AND FIRE-HUNTING. 



Krt 



§568. Game law. No person shall shoot, trap, kill, ensnare, net, A ^%}^ v ' } ' 
or destroy in any manner any wild turkey, pheasant, snipe, partridge 1895 » p- " 5 - 
or any insectivorous or singing bird, except English sparrows, crows, A 
larks, rice-birds, wheat-birds and doves, between the first day of f&i^ m r, 
April and the first day of November. /£ 1 

No person shall trap, kill, ensnare, or destroy any dove between 
the first day of April and the fifteenth day of July. 

No person shall hunt, kill, wound, or destroy any deer or fawn 
between the first day of January and the first day of October. 

No person shall sell, or offer for sale, any wild deer, wild turkey, 
pheasant, snipe, partridge, dove, or other game-bird killed, destroyed, 
caught or ensnared in this State within the dates aforesaid, in vio- Jj ftr. a . ^ ' 
lation of this section. r 17* f®/ 

A violation of this section is a misdemeanor. 

§569. All existing game laivs superseded. The preceding section shall Actsim 
supersede all existing laws on the subject of game and game protec- — - , 

tion, and shall have a uniform and general application. 

§570. (4562 f.) Fire-hunting. No person shall hunt with a gun by Acr ^ sso - 1 - 
firelight or kill any deer so hunting by firelight in the night-time, 
except upon his own premises, without the full permission and consent 
of the owner of the lands upon which he may hunt. And any person 
violating this section shall be guilty of a misdemeanor. 



ARTICLE 85. 



b/- <^3 



TERRAPINS, TURTLES, FISHING, AND OYSTERS. 

§571. Time ivithin which terrapins may not be captured. If any per- Acteisar, 
son shall capture terrapins in any of the rivers, estuaries, bays. 



§§572^577 TENTH DIVISION.— ARTICLE 85, 158 



Terrapins, turtles, fishing, and oysters. 



sounds, creeks or tide-waters of this State, by means of seines, nets, 
traps or other device, from the iirst day of March to the twenty- 
fifth day of July, he shall be guilty of a misdemeanor. 

*£% ( 188 ' §572. Female terrapins of certain size not to be captured. No person 
shall capture in any manner, or at any time, female terrapins of a 
loss size than five and one-half inches measured lengthwise on the 
lower shell, and when any such terrapins are caught they shall be at 
once returned to the waters from which they were taken. A viola- 
tion of this section shall be a misdemeanor. 

A P C % 1887 ' §573. Evidence. It shall be taken and deemed as prima facie evi- 
dence of a violation of the provisions of the two preceding sections, 
for any person or persons to be found in possession of any terrapin 
of a less size than five and one-half inches measured lengthwise on 
the lower shell~at any season of the year, or of any terrapin of any 
kind between the first of March and twenty-fifth of July. 
Act | 9 1887 ' §574. Regulations as to nets. If any person shall at any time use 
any seine, net, trap, or other device for the capture of terrapins, with 
meshes or openings smaller than five and one-half inches stretched, 
or four and one-fourth inches loose measure, he shall be guilty of a 
V f ^j misdemeanor. 
'p 0t i4 18556 ' §575. (1622,1623.) Turtles , when to be taken . If any person shall 
i89s' p 63* ta ^e turtles within tide-water at any time other than from the first 
day of May to the first day of September, he shall be punished as 
for a misdemeanor. 
Cobb, 9io, §576. (1624, 1625.) Fishing regulated. No person shall inhabit, 
Acta^i894, OCCU py or reside in any vessel, ark, or flat on any river of this State, 
1S96, p. 63. wn i cn shall not be engaged in the lawful commerce of said river, in 
the carriage of goods or produce to or from market, unless owned by 
the proprietors of the shores, or their lessees: Provided, nothing in 
this section shall be construed to prevent the owners of the land on 
said rivers, or their lessees, from taking fish in the river opposite 
their banks; but no seine shall be permitted to be used in said rivers, 
either by such owners or their lessees, from twelve o'clock Saturday 
night to twelve o'clock Sunday night: And provided, also, that every 
lease or license to fish shall be recorded within ten days after the 
granting thereof in the clerk's office of the superior court of the 
county where the land lies. A violation of any of the foregoing pro- 
visions shall be punished as for a misdemeanor. 

A( ; l ^ ii ' 2 - §577. (4625.) Illegal fishing. No person, other than the proprie- 
1896, p. 68. tors of the shores and banks of salt creeks, estuaries and rivers 
(or such person as shall be by any such proprietor authorized), shall 
take fish, or attempt to do so, with any line, net or contrivance, on 
any creek, estuary or river, where an artificial shell-reef, beds or 
fishing-grounds have been constructed, within one hundred yards 
thereof. Nor shall one proprietor construct or use such places oppo- 



159 TENTH DIVISION.— -ARTICLE 85 \~ 561 

Terrapins, turtles, Ashing, and oysters. 

site the shore or bank of another proprietor beyond the eenter of the 
creek, estuary or river opposite his own shore or bank. Any person 
violating the provisions of this section shall he guilty of a misde- 
meanor. 

§578. (4625b.) Traps, etc., unlawful, except by consent. IF any^*j I" 7 ' 
person shall put any trap, wire, trot-line, set-line, or other like con- 
trivance, for catching fish for sale, in any of the lakes, or other 
waters of the State, upon or within the lands of another, without the 
written consent of the owner thereof, he shall be guilty of a misde- 
meanor. 

§579. (4625 c.) Obstructing passage offish. If any person shall Act^isso-i, 
place in the waters of any river or creek, or any fresh-water drain, "■*• P* tt - 
any dam, trap, net, seine, or other device for catching fish, unless 
the main channel of such stream is left open for a space of ten feet 
for rivers and one-third channel of creek, at low-water mark, unob- 
structed for the free passage of fish up or down such stream, he shall 
be guilty of a misdemeanor; and the sheriff of the county, upon 
complaint of persons in the territory of such obstructions, shall have 
authority to break and open any dam, net, or other obstruction that 
may be placed in such waters in violation of this section. This sec- 
tion does not apply to dams for milling or manufacturing purposes. 
The words "low-water mark" shall not apply to fresh-water drains. 

§580. (4625 a.) Killing fish with dynamite. If any person shall A £ t l^ m ' 1 ' 
use dynamite, or other explosive or destructive substance for the 
purpose of killing fish, he shall be guilty of a misdemeanor. 

§581. Nets, etc., extending to or obstructing more than one-half the 'l ^ 893 ' 
stream. If any person shall use nets, seines, or other contrivances 
covering, extending to, or obstructing more than one-half of the 
stream, for catching or taking shad in any of the streams of this 
State, he shall be guilty of a misdemeanor. 

§582. (1465n.) Closed time and meshes of nets for shad. There -^ s .i? 7 §: 

o \ / J J pp. 20. 21. 

shall be a "closed time " in the rivers in which shad are caught, 
of forty-eight hours, commencing at sunrise on Saturday morning 
of each week and. ending at sunrise on Monday morning of the next 
week, during which " closed time " no shad or other migratory fish 
shall be caught by nets, wires, pounds or any other means whatever: 
neither shall such nets, wires, pounds, or other apparatus be left in 
said rivers during said " closed time. " The meshes of nets or other 
apparatus for catching said fish shall not be less than five inches. 

§583. (1465 o.) When shad shall be taken. No shad shall be taken. ^^^ 
except between the first day of January and the twentieth day of 
April of each year, except for spawning purposes, to carry out the 
provisions of law for propagating fish. 



§§584-592 TENTH DIVISION.— ARTTCLE 35. 160 



Terrapins, turtles, fishing, and oysters. 



§584. (1465p.) Pengjtof. A violation of either of the two pre- 
oeding sections shall be a misdemeanor. 

* a %S* hli §585. Sey&ingor netting for mountain trout. If any person shall seine 
or net for fish in any of the streams in which mountain trout exist, 
or are placed, he shall be guilty of a misdemeanor. 

Actors §586. Time for taking oysters. If any person shall prick, tong, 

dredge, or in any other manner take or catch oysters from any of 
the waters of this State, except from private beds, from the first of 
May to the thirty-first day of August, inclusive, except for the pur- 
pose of replanting the same in the waters of this State; or shall 
take them for any purpose during any season from one hour after 
sunset on Saturdays, until one hour before sunrise on the succeeding 
Mondays, he shall be guilty of a misdemeanor. 

Acteisso, ^oS7. Unlawful to rough take oysters. If any person shall " rough " 
lake or catch oysters from any of the public beds within the waters 
of this State, unless the same shall be culled over the beds from 
which they may be taken, except when the weather is such as to ren- 
der it dangerous to remain at the beds, he shall be guilty of a mis- 
demeanor. This section shall not apply to the taking of oysters for 
the purpose of replanting the same in any of the waters of this State. 

Acts 1889, §588. Removing oysters from private beds, or removing oyster-marks. If 
any person shall, without authority from the owner, take or catch 
any oysters from any private bed, or remove or deface any oyster- 
marks, he shall be guilty of a misdemeanor. 

Acts 1889, §589. How oysters may be taken. If any person shall take or catch 
oysters by the use of any other instrument than the oyster tongs, 
heretofore in general use for taking oysters, within the waters less 
than one thousand feet distant from the shore-line at ordinary mean 
low tide, he shall be guilty of a misdemeanor. 

'^rTin 889 ' §590. Exceptions. The foregoing section does not apply to oysters 
taken by any means from private beds by the owner or lessee thereof. 
Nor does it apply to oysters taken from unleased territory within 
said limits, for the purposes of transplanting to other beds in this 
State, with the consent and approval of the ordinary and board of 
county commissioners as provided by law. 

"p°p 3 2 1 iT J *' §591. Certain persons shall not procure oyster-beds in this State. If 
any person, corporation or agents thereof, who are engaged in any 
other State in the business of shipping or canning oysters, shall pro- 
cure oyster-beds of this State, it shall be a misdemeanor. 

^yf 00 * 1 ' §592. Tonging or catching at night. If any person shall tong or 
catch oysters between sunset and sunrise, unless an unobstructed 
light, six feet above the gunwale, be carried On board the boat used 
for such purpose, he shall be guilty of a misdemeanor. 



161 TENTH DIVISION.— ARTICLES 86, 87. 598-507 



Duties of oiiiccrsot' ban ks and ntiicr corporations. Foreign building and loan aMociationg, etc, 

ARTICLE 86. 

DUTIES OF OFFICERS OK BANKS AND OTHER OOBPOBATION0. 

§598. Bank officers, agents or directors violating Ian-. Any officer, 
agent or director of a bank or banking association of this State, who 
shall violate the provisions of sections 1984, 1948 and 1919 of the 
Civil Code, or either of them, shall he punished by imprisonment 
in the penitentiary for not less than one year nor more than twenty 
years. 

§594. Failing or refusing to permit creditor to inspect list of share- ac*^ 1894 ' 
holders. If the president or other officer of a bank or other corpora- 
tion, in charge of the business of such bank or corporation at the 
time a demand is made, as prescribed in section 1891 of the Civil 
Code, by a creditor of said bank or corporation within the business 
hours of any working day, shall fail or refuse to permit such cred- 
itor to inspect the list of the shareholders of such bank or corpora- 
tion, he shall be guilty of a misdemeanor. 



ARTICLE 87. 

FOREIGN BUILDING AND LOAN ASSOCIATIONS, AND INSURANCE COMPANIES. 

§595. Foreign building and loan associations. If any officer, "^^^f " 1 ' 
director, or agent of any foreign building and loan association shall. ^ 63 
in this State, solicit subscriptions to the stock of such association, 
or sell or issue, or knowingly cause to be sold or issued, to a resi- 
dent of this State, any stock of an association while said association 
has not on deposit, as required by law, seventy-five per cent, of all 
its securities, or before said association has complied with all the 
provisions of law, he shall be guilty of a misdemeanor. 

§596. Scde of stock of home company to non-residents. If any officer. ^J^^f " 1, 
director or agent of any building and loan association incorporated jjjg- ^ 
under the laws of this State shall sell, issue, or knowingly cause to 
be sold or issued, to any person not a resident of the State in which 
the home office of said company is located, any stock of said asso- 
ciation while said association does not have on deposit, as required 
by law, seventy-five per cent, of all of the securities of said associa- 
tion taken in the regular course of business, he shall be guilty of a 
misdemeanor. 

§597. Penalty on agents of unauthorized insurance companies. Any-^^p 7, 
person who shall do or perform any of the acts or things mentioned 
in the law of this State regulating the business of insurance, for any 
insurance company, or agent of said company, without such company 
11 



[$508-601 TENTH DIVISION.— ARTICLES 38, 39. 162 

Toddling without a license. Emigrant agents. 

having first received a certificate of authority from the insurance 
commissioner of this State, as required by law, shall be punished as 
for a misdemeanor, and shall also pay a sum equal to the State, county 
and municipal taxes and licenses required to be paid by insurance 
companies legally doing business in this State. It is the duty of the 
insurance commissioner to see that violators of the provisions of 
this section are prosecuted. 

This embraces only chartered companies : 92 Ga. 8. 
A p Ct ri^"' §59S. Falsely or fraudulently procuring insurance. Any agent, phy- 
1895. p. 63. aioian, or other person, who shall knowingly secure, or cause to be 
secured, a certificate of membership on any person without his 
knowledge or consent, or, by means of misrepresentations, fraudulent 
or untrue statements, be instrumental in securing a certificate of 
membership on an aged or infirm person, or in restoring to member- 
ship a person not in an insurable condition, shall be punished as for 
a misdemeanor, and the certificate or renewal so secured shall be 
absolutely void. 
A n Ct io9 8W ' §599. Insurance brokers acting without a license, etc. Any person who 
shall do, or attempt to do, the kind of business mentioned in sections 
2072 to 2079, inclusive, of the Civil Code, without being duly licensed, 
or who shall continue, or attempt to continue it, after his license has 
been forfeited or revoked, and any licensed insurance broker who, 
after failing to comply with any requirement made of him by said 
sections, shall apply for, or procure in behalf of any person, any 
insurance on property in this State other than his own or that in 
which he has some insurable interest, shall be guilty of a misde- 
meanor. 



ARTICLE 38. 

PEDDLING WITHOUT A LICENSE. 

Acts b il$5-e §^00. (4598.) Peddler selling without a license. If any peddler, or 
P' 288 - itinerant trader, shall sell any goods, wares or merchandise, except 

such as are excepted by law, without a license from the proper 

authority, he shall be guilty of a misdemeanor. 



ARTICLE 39. 

EMIGRANT AGENTS. 

Act i2o 877 ' §001. (4598 b.) Acting as emigrant agent without a license. Any per- 
son who shall solicit or procure emigrants, or shall attempt to do so, 
without first procuring a license as required by law, shall be guilty 
of a misdemeanor. 



168 TENTH DIVISION,— ARTICLES 40,41. 602-606 



Receipts Hhall be given by common carriers and Innkeepers. Inspection ot oil, 



ARTICLE 40. 

RECEIPTS SHALL BE GIVEN BY COMMON CARRIERS AM) I .V.N'KKK PBBfl . 

§602. (4604.) Receipts of carriers. Whenever any person shall AetoMjw, 

deliver property of any description, to a railroad, steamboat, or GX^Jg* t „ 
press company, for transportation, said company shall upon demand, 
furnish the party so delivering a valid receipt which shall specify the 
shipping marks and numbers thereon and the weight of the property 
thus delivered, whenever the value can be estimated by weight; and 
in all cases where the value cannot be thus estimated, the receipt 
shall give a general description of the property, and shall also 
specify, as near as practicable, the quantity or value thereof, and 
also the place of destination; and any agent or officer of such com- 
pany violating the provisions of this section, shall be guilty of a 
misdemeanor. 

§603. (2123.) Innkeepers to give checks or receipts for baggage. Keep- Acts ises. 
ers of inns, hotels, and other houses of public entertainment for 1865 ;*; 
travelers, shall give receipts or checks for all baggage of their guests, 
delivered in such inn, hotel, or house of entertainment, when 
requested so to do by such guest; and such keeper shall not make 
any additional charge for receipting for, checking or keeping such 
baggage, so long as the owner remains a guest of the house. A viola- 
tion of the provisions of this section shall be a misdemeanor. 



ARTICLE 41. 

INSPECTION OF OIL, AND SALE OF ILLUMINATING FLUIDS. 

§604. Illegal use of official brands. If any person shall use the Acts isoo-i, 
official branding device of the inspector of oils contrary to law, he 
shall be guilty of a misdemeanor. 

§605. Duplicate of request for inspector. "Whenever a person desires Acts 1^90-1, 
to have oil inspected, he shall, at the time of sending the order for 
inspection to the inspector, send a duplicate of the order to the 
commissioner of agriculture, and for a failure to do so he shall be 
guilty of a misdemeanor. 

§606. (1579a.) Illegal sale of illuminating fluids. Any person Aetsisao-i, 
who shall sell or offer for sale any of the illuminating fluids desig- lfi ^> p- es - 
nated in section 1588 of the Civil Code in violation of the provisions 
of said section, shall be guilty of a misdemeanor; one-half of this 
fine, if one be imposed, to go to the prosecutor, and one-half to the 
public-school fund in the county where such misdemeanor may have 
been committed. 



§§607-611 TENTH DIVISION.— ARTICLE 42. 164 

Inspection of fertilisers, flour, grain, cottonseed-meal, wood, timber, and naval stores. 

A iTr#* M ' § l>>0 ~- (15JWa.) Branding rejected fluids and selling the same. It 
shall In 4 the duty of inspectors to brand such oils or fluids as fall 
below one hundred and twenty degrees fire-test, "State of Georgia — 
rejected^" together with name of the inspector, and date of inspec- 
tion. Any person who shall Bell or offer for sale such rejected oil or 
fluid shall be guilty of a misdemeanor; the fine, if one be imposed, 
to be given to the public-school fund in the county in which the 
offense is committed. 

Act y^ 1 » §60S. (1579e.) Wrongful iisc of branded vessels. Any dealer in 
illuminating oils or fluids who shall receive, give away, buy or sell 
any empty barrels or other packages from which said oil or fluid 
has been emptied, without first removing or defacing the inspector's 
brand, or shall refill such casks or other packages with uninspected 
oil or fluid, for the purpose of sale, and shall sell or offer the same 
for sale without first having it inspected, shall be guilty of a misde- 
meanor; the fine, if one be imposed, to be devoted to the public- 
school fund in the county in which the offense is committed. 

M » §609. (1579, 1579 h.) Inspector, clerk or deputy violating law. 
153 - All clerks and deputies of inspectors are held amenable and subject 

to the penalties for violating any of the provisions of law regulating 
the inspection of coal and petroleum oils; and any inspector, inspec- 
tor's clerk, or deputy, who fails to discharge the duties required of 
him by said law, or violates the same, shall be guilty of a mis- 
demeanor. 

Act | 5 1872 ' §610. (4556.) Sale of uninspected oil. If any person shall sell, or 
keep for sale, or in storage, any crude or refined petroleum, naphtha, 
kerosene, earth-rock, coal, machine or illuminating oil, the products 
- of petroleum, earth-rock or coal-oil, without having the same 
inspected and approved by an authorized inspector, he shall be 
guilty of a misdemeanor. 

Every sale of oil below test is a distinct offense. No objection to a witness 
that he is not the inspector authorized by law. When the illegal sale has been 
proved, the illegal intent will he presumed, and anything in rebuttal is matter 
for the defense. Ignorance is no excuse: 66 Ga. 160, 111. 



ARTICLE 42. 



INSPECTION OF FERTILIZERS, FLOUR, GRAIN, COTTONSEED-MEAL, WOOD, 

TIMBER, AND NAVAL STORES. 

A p ct i4f; 8&0 ~ ly §611. Illegal sale of fertilizers or chemicals. Any person soiling or 
offering for sale any fertilizers or chemicals, without having first 
complied with the provisions of law as to the inspection, analysis and 



165 TENTH DIVISION.— -ARTICLE 42. 626-681 



Inspection of fertilizers, Hour, grain, cottonseed-meal, wood, Umber, and i 



sale of commercial fertilizers, chemicals and eottonseed-meal, s. >';..• 
be guilty of a misdemeanor. 

§012. (1561, 1502.) Neglect of duty by inspectors of flour, etc. Any* 
neglect of duty by an inspector of flour, Indian com and corn meal, 
wheat and other grain in bags, barrels, or in bulk, shall be a misde- 
meanor. 

§018. Inspection, analysis and sale of cottonseed-meal. Any person Act ^** " 1, 
violating the provisions of law governing the inspection, analysis and 
sale of cottonseed-meal, shall be guilty of a misdemeanor. 

§014. (1504a.) Excessive charge for inspecting lumber and. timber. Actsi87«, 
No corporate authority, incorporation, or court shall authorize in- 
spectors and measurers of lumber and timber to charge more than 
twenty-five cents per thousand feet for inspecting, measuring and 
trimming lumber and timber; if any such inspector or measurer 
shall charge more than that sum, he shall be guilty of a misdemeanor. 

§015. (1503(3).) Inspector shall not be clerk, etc. If any timber or Cobb. 24. 
lumber inspector, or measurer, shall, during his term of office, be the p-^3- 
clerk or agent of a lumber or timber buyer, or the clerk or agent of a 
lumber mill, he shall forfeit his office and be punished as for a 
misdemeanor. 

§010. (1503(10).) Failure to measure timber. If any inspector or Acteisn, 
measurer of timber shall fail, neglect, or refuse to measure timber as 
prescribed by law, he shall be guilty of a misdemeanor. 

§017. (1504.) Violation of timber or lumber law . Any inspector orActsi873. 
other person who shall violate any of the provisions of section 1000 1895 - p- ^- 
of the Civil Code, so far as the same relates to the inspection and 
measurement of timber or lumber, shall forfeit his office, and be pun- v . 
ished as for a misdemeanor. 

§018. Inspectors to be disinterested. If an inspector of naval stores, Acts war, 
appointed by the corporate authorities of a city, or an ordinary, shall 
be during his term of office the agent or clerk of a buyer of naval 
stores, or of a factor, brokerage or commission merchant engaged in 
the buying or selling of naval stores, or of a manufacturer engaged 
in the production of naval stores, he shall forfeit his office and in 
addition thereto shall be punished as for a misdemeanor. 

§019. Charges for inspection. Any inspector of naval stores charg- Acts iss:, 
ing and demanding more than six cents for inspecting a barrel of 
rosin, or more than nine cents for inspecting a barrel of spirits of 
turpentine, shall be guilty of a misdemeanor. 

§020. Interfering ivith inspector's brand. If any person, other than Acts 1887, 
a sworn and bonded inspector, shall interfere, or cause it to be done, 
with a brand placed by an inspector upon a barrel of rosin designat- 
ing the true grade or quality of the rosin, or upon a barrel of spirits 
of turpentine designating the number of gallons in the barrel, he 



§§607-611 



Inspection of 



Acts lSSO-i, <,;. t 
P. IB. &g \ » 

sh & 



8 




TSION.— ARTICLE 48. 



166 



Suffrage. 



[meanor; and where a fine is imposed, one- 
le informer. 

If an inspector shall fraudulently place 
rade or quality upon a barrel of rosin, or 
umber of gallons upon a barrel of spirits 
Wilty of a misdemeanor. 



ARTICLE 43. 



SUFFRAGE, 



Acts 1859. 

p. 32. 
1895, p. 63. 



Acts 1895, 
p. 63. 



Acts 1895, 
p. 63. 



Acts 1894, 
pp. 121, 
122. 



§622. (1288.) List of voters, duty of clerk. If the clerk of the supe- 
rior court shall violate, or permit another to violate, section 72 of 
the Civil Code, he and the person so offending shall be guilty of a 
misdemeanor. 

§623. (1289.) Superintendent to deliver list to clerk, etc. If a super- 
intendent of elections shall fail to deliver the list of voters and accom- 
paniments to the clerk of the superior court as required by law, 
within three days from the day of election, or if he shall fail to dis- 
charge any other duty required of him by law, he shall be guilty of a 
misdemeanor. 

§624. (1288.) Clerk failing to return list to grand jury . If a clerk of 
the superior court shall fail to deliver the list of voters to the grand 
jury as required by law, he shall be guilty of a misdemeanor. 

§625. Violations of registration laws. 

1 . Any person who shall sign his name or mark to the oath in the 
voters book as prescribed by law, and who is not in fact qualified as 
stated in the oath; or 

2. Who shall sign his name or his mark in said voters book more 
than once for the same calendar year; or 

3. Who shall in like manner sign any assumed or fictitious name 
in said voters book; or 

4. Who shall aid or abet any other person to sign his name or his 
mark in said voters book more than once for the same calendar 
year; or 

5. Who shall aid or abet any other person to sign any assumed 
or fictitious name in said voters book; or 

6. Who shall deposit or aid or abet another to deposit a ballot at 
any election in any name other than his own, as appears on the list 
of registered voters prescribed by law; or 

7. Who shall vote without having signed the oath provided by the 
tax-collector in said voters book, unless his name shall have been 
entered on the lists of legal voters as provided by law; 

Shall be guilty of a misdemeanor. 



167 TENTH DIVISION.— ARTICLE '4& 626-681 



Suffrage. 



§626. Falsifying the voters books or lists. Any tax-collector, clerk, A ^:- 

or other person who shall falsify the voters book prescribed by law, 
or lists taken therefrom, and any county registrar who shall falsify 
the lists of registered voters, shall he punished by confinement in 
the penitentiary for not less than one nor more than five years, and 
shall be forever afterwards prohibited from holding any oflice in 
this State. 

§627. (4568.) Voting more than once, etc. If any person shall vote Cobb ' 819 - 
more than once at any election which may be held in any county, 
or vote out of the county in which he may usually reside, for mem- 
bers of the legislature, or for county officers, unless authorized by 
law, he shall be punished by imprisonment and labor in the peniten- 
tiary for not less than one year nor more than two years. 

§628. (4571.) Illegal voting by a minor. If any person under the SSiISi, 
age of twenty-one years and above the age of fourteen, shall vote p- 233 * 
illegally at any election, he shall be guilty of a misdemeanor. 

§629. (4569,4568 a.) Buying or selling votes, and voting illegally. 25?ilSi. 
If any person shall — p " 129, 

1. Buy or sell, or offer to buy or sell, a vote, or shall be in any 
way concerned in buying or selling a vote at any election in this 
State, or in any county thereof; or 

2. If any person shall vote at any such election, who has not re- 
sided in this State one year next preceding such election; or 

3. Who has not resided six months next preceding said election in 
the county in which he has voted; or 

4. Who has not paid all taxes, which, since the adoption of the 1 ^ 7 ^ 
present Constitution of this State, have been required of him pre- 
vious to the year in which said election occurs, and which he has had 

an opportunity of paying agreeably to law; or 

5. Who has been convicted in any court of competent jurisdiction, 
of treason against the State, of embezzlement of public funds, mal- 
practice in office, bribery or larceny, or any crime involving moral 
turpitude, punishable by the laws of this State with imprisonment 
in the penitentiary, unless he shall have been pardoned ; 

He shall be guilty of a misdemeanor. 

A person not criminally liable who paid a tax execution to a constable, in 
whose hands it was for collection, on the day of the election, and then voted : 
71 Ga. 595. 

§630. Municipal elections. Any person who shall vote. illegally at ^f^J, 888 "^ 

any municipal election shall be punished as for a misdemeanor. 

§631. Local option elections. Any person voting illegally at any^/j^f* 4 " ' 
election held under the provisions of sections 1541, 1542, 1543, 1544, 
1545, 1546, and 1550 of the Civil Code, shall be guilty of a misde- 
meanor. 



§§682-^89 TENTH DIVISION.— ARTICLES 44,45. 168 



Bfanying, and Issuing Lioense to marry. Illegally. White and colored convicts not to be confined, etc. 

~ i*v-i. §632. Manager of primary election violating duty. Any manager of 
a primary election, who shall be guilty of willfully violating any of 
the duties and obligations devolving upon him as such manager, shall 
be punished as for a misdemeanor. 
tH 890 " 1 ' §683. Fraud or corruption in manager. Any manager of a primary 
election, who shall be guilty of fraud or corruption in the manage- 
ment of an election, shall be punished as for a misdemeanor. 

^fau 880 " 1 ' §t>34. False oath, etc., by voter. Any voter at a primary election, 
who shall, if challenged, swear falsely in taking the prescribed oath, 
or shall personate another and take the oath in his name in order to 
vote, shall be guilty of perjury, and shall be punished as for perjury. 

^Jau 890 " 1, §685. Illegal voting. If any person voting at a primary election 
p. 63. Bna ji vote more than once or at more than one polling-place, he shall 
be guilty of a misdemeanor. 

Drunk man voting twice : 91 Ga. 740. 

^rt, 18801 ' §636. (1331.) Contested elections , clerk to deliver ballots. If a clerk 

ins, p. 83. f |j ie SU perior court, who by law is entrusted with the ballots of an 
election, shall fail or refuse to deliver up such ballots when they are 
required as evidence in a contested election case and are legally 
demanded of him, he shall be guilty of a misdemeanor. 



ARTICLE 44. 

MARRYING, AND ISSUING LICENSE TO MARRY, ILLEGALLY. 

Cobb, 818, §637. (4566.) Performing marriage ceremony illegally . If any min- 
ister of the gospel, judge, or justice, shall join together in matri- 
mony any man and woman, without a license or publication of 
banns, as provided by law, or where either of the parties within his 
own knowledge shall be an idiot or lunatic, or subject to any other 
disability which would render such contract or marriage improper 
and illegal, he shall be guilty of a misdemeanor. 

Actsiw. r >-<>, §038. (4567.) Intermarriage of whites and colored people. If any 
officer shall knowingly issue a marriage license to parties, either of 
whom is of African descent, and the other a white person, or if any 
officer or minister of the gospel shall marry such persons together, 
he shall be guilty of a misdemeanor. 

Such marriages forever prohibited : 39 Ga. 321. 



ARTICLE 45. 

WHITE AND COLORED CONVICTS NOT TO BE CONFINED OR 
CHAINED TOGETHER. 

Acts 1890-1, §630. Chaining or confining 'white and colored convicts together. No 
person or firm leasing or controlling convicts shall confine white and 



169 TENTH DIVISION.— ARTICLES 40,47. 1<>-012 



Rogues and vagabonds, and nuisances. Failure u>k\v>> bastardy bond, or bond to support pauper. 

colored convicts together, or work them chained together, or chain 

thorn together going to or from their work, or at any other time. 
Any person and each member of a firm violating the provisions of 
this section shall be guilty of a misdemeanor. 



ARTICLE 40. 

ROGUES AND VAGABONDS, AND NUISANCES. 

§040. (4501.) Having possession of false key r s , picklocks , etc. If any ®2u?i£S' 
person shall be apprehended, having upon him any instrument, with P« 
intent to break and enter into any dwelling-house, warehouse, store, 
shop, coach-house, stable, or outhouse, in order to steal or commit 
any other crime; or, shall have upon him any offensive weapon, 
with intent to commit crime upon any person, which, if committed, 
would be punishable by death or confinement in the penitentiary; 
or, shall be found in or upon any dwelling-house, warehouse, store, 
shop, coach-house, stable, or outhouse, with intent to steal any 
goods or chattels, he shall be deemed a rogue and a vagabond, and 
shall be punished by confinement and labor in the penitentiary for 
not less than one year nor longer than five years. 

Cited : 21 Ga. 399. A verdict supported by the evidence : 14 Ga. 18. 

§041. (4502.) What nuisances are indictable. Any person who shall Cobb ' 817# 
erect, or continue, after notice to abate, a nuisance which tends to 
annoy the community, or injure the health of the citizens in general, 
or to corrupt the public morals, shall be guilty of a misdemeanor. 



ARTICLE 47. 

FAILURE TO GIVE BASTARDY BOND, OR BOND TO SUPPORT PAUPER. 

§042. (4504.) Putative father refusing. If a putative father of a Cobb, 818. 
bastard child shall refuse or fail to give security for the rnainte- p- 233. 

. -. . . 1892. P- 108. 

nance and education of such child, when required to do so m terms 

of the law, he shall be guilty of a misdemeanor. If fined, the fine 
shall be paid over to the ordinary of the county, to be by him im- 
proved and applied from time to time, as occasion may require, for 
the maintenance and education of such child, and shall not be re- 
tained by the officers of court for the purpose of paying insolvent 
costs due them, or for any purpose. 

Being the father of the child and refusing or failing to give security for its 
maintenance and education, when required so to do in terms of the law, con- 
stitute the offense: 3 Ga. 534; 5/494; 23/234; 58/196; 66/580; 68/551; 67/187. 
Sheriff no authority to take the bond : 58 Ga. 196. Has any magistrate except 
a justice authority to take the bond? 23 Ga. 230; 68/551. 



§§64S-646 



TENTH DIVISION.— ARTICLE 48. 



170 



Boats and (.'rows, discharging ballast in harbor, pilots and seamen. 



Acts 1885, 
p. t>3. 



It must be charged distinctly that the defendant is the father of the child. 
Putative, itistead of actual father is not sufficient: 3 Ga. 534; 20/426. 

Defendant may be charged with but one offense in being the father of two 
children, but the better practice is to indict for each offense separately: 58 

Ga. 170. 

That defendant was arrested, and waived examination before the justice 
and gave bond for his appearance before the superior court, did not, without 
more, amount to a. demand and refusal to give bond : 68 Ga. 551. 

The probability of the child becoming chargeable to the county is not in- 
volved on the trial: 66 Ga. 580. Proof that the woman was unmarried, under 
an indictment that did not contain that charge, admissible: 28 Ga. 19. Copy 
of affidavit and warrant, admissible in lieu of lost original: 58 Ga. 170. The 
warrant is admissible to show the arrest, and that he was regularly brought 
before the justice : 5 Ga. 492. The mother may make the affidavit necessary 
to authorize the warrant: 58 Ga. 171. 

That a bastard was born in a certain county, and that the warrant, etc., and 
refusal, were in that county, is sufficient proof of venue: 66 Ga. 580; 29/424; 
67/187 ; 58/170. 

Proof as to color of the child : 84 Ga. 527. 

This offense may be tried on accusation in the city court: 74 Ga. 842. 

§643. (772.) Failure to give bond to support a pauper. If any person 
fails to give the bond prescribed in section 445 of the Civil Code, he 
must be committed to jail until it is done, or until the next term of 
the superior court of the county, when, if not done, or he does not 
take care of said pauper and pay all costs, he is guilty of a mis- 
demeanor. 



ARTICLE 48. 



BOATS AND CREWS, DISCHARGING BALLAST IN HARBOR, PILOTS 

AND SEAMEN. 



Cobb. 14. 
Acts 1895, 
p. 68. 



Cobb. 14. 
Acts 1895, 
p. 68. 



Acts 1886, 
p. 68. 



§644. (1627.) Owners of boats must grant bills of lading. If an 
owner or agent of a boat employed in the navigation of the navi- 
gable w r aters of this State shall fail to grant to such boat, previously 
to its departure from the wharf or landing, a certificate or bill of 
lading, showing its destination, contents, and the name of its cap- 
tain or patroon, and consignee, he shall be guilty of a misdemeanor. 

§645. (1627, 1628.) Penalty for not exhibiting bill of lading. The 
certificate or bill of lading mentioned in the preceding section shall, 
at all times, be subject to the examination of any person requiring it; 
and if the captain or patroon shall refuse to exhibit it on demand, 
he shall be guilty of a misdemeanor. 

§646. (1587.) Discharging ballast in harbor. If any master of a 
vessel, or water-craft of any description, shall throw, or permit to be 
thrown from on board such vessel or water-craft, into any of the 
waters of any bay or harbor of this State, or within three miles of 



171 TENTH DIVISION.— A RTIOLE 48. §§647-651 

BoatH and criiws, diHohartfin^ ballait in harbor, pilot! ami h<:a/n<-n. 

the outside bar of any nuch bay or harbor, any ballast, he shall be 
guilty of a misdemeanor. 

Cited : 46 Ga. 199. 

§647. Acting as pilot without a license. If any person, having BO^JJ* 88 ' 
authority or license to act as pilot, or who, having had any 1 ^'^' 1 - 
authority, has had it suspended or revoked by the commissioners, 
shall, while his license is suspended, pilot or conduct any vessel 
inwards to, or outwards from, any of the ports, rivers or harbors of 
this State, or if any person interferes with or disturbs a licensed 
pilot in the way of his duty, he may be punished as for a misde- 
meanor. 

§648. Exception. Any person may assist a vessel in distress with- ^ 5t | & 1886 ' 
out any pilot on board, if such person shall deliver up the vessel to 
the first pilot who comes on board and offers to conduct it, but the 
vessel must fly the signal for a pilot until one has been received or 
his services tendered. 

§649. (1543.) Seamen failing to perform duty. Any seaman having 
entered or shipped himself on board a vessel within this State, or 
which shall come to the same, and having signed a contract with 
the master or commander thereof to proceed upon any voyage therein 
mentioned, who shall absent himself from such vessel for twenty- 
four hours without leave of the master or commander, or other chief 
officer having command of the vessel, or who shall neglect or refuse 
to perform his duty on board the same, or refuse to proceed on the 
voyage mentioned in such contract, may be apprehended on warrant 
from any justice within his jurisdiction upon application being made 
to him by such master or commander under oath, and upon proof of 
such absence without leave, or of such neglect or refusal as aforesaid, 
he may be committed to jail, or other secure place, for any time not 
exceeding thirty days, or until the sailing of such vessel, and the 
charge of apprehending, committing and maintaining such seaman 
during his confinement as aforesaid, shall be paid by the complain- 
ant, and by him be deducted out of the wages due, or to be due, 
such seaman, but no seaman shall be received by the jailer until 
security shall have been given for the maintenance and jail fees of 
such seaman. 

§650. (1544.) Resisting search for seaman and seizure . Any person ^Ig 1895 ' 
who shall resist the execution of a lawful warrant authorizing a 
search for, and seizure of, an articled seaman, shall be guilty of a 
misdemeanor. 

§651. (1546.) Furnishing seaman with liquors. If the keeper of a Cobl? - 81 - 
tavern or tippling-house, or any other person selling intoxicating or 
spirituous liquors, shall sell any such liquor to a seaman belonging 
to a vessel and who may have signed a contract with the master or 



SS 653-666 TENTH DIVISION.— ARTICLE 48. 172 



c e 



Boats and crews, discharging ballast in harbor, pilots and seamen. 



commander of a vessel to proceed upon a voyage, to the amount of 
more than thirty cents in any one day, or shall entertain, or suffer 
any such seaman to drink in such tavern or tippling-house, or furnish 
him with liquor after the hour of nine o'clock at night, unless with 
the consent of the master or commander of such vessel, he shall be 
punished as for a misdemeanor. 

- $96 §652. (1547.) Seaman may demand certificate of discharge. If the 
master or commander of a vessel shall refuse, without just cause, to 
give on demand, to a seaman whose contract for the performance of 
a voyage shall be determined, a certificate thereof and of his dis- 
charge, such master or commander shall be guilty of a misdemeanor. 

AeteiSK §653. (1548.) Hiring , receiving , entertaining , or shipping seamen . If 
any master or commander of a vessel, or other person, within this 
State, shall hire, receive, entertain or ship any seaman belonging to 
and pretending to be discharged from any vessel, or if any person 
keeping or attending any ferry shall willingly transport or suffer to 
be transported over such ferry any fugitive seaman, without a cer- 
tificate of discharge being in possession of such seaman, such offender 
shall be punished as for a misdemeanor. 

Acts 1895, §654. (1549.) Hiring , receiving , or shipping a seaman . If any sailor 
boarding-house keeper, a runner, or shipping-master, or other per- 
son, shall hire, receive, or entertain, or ship any seaman belonging 
to, or pretending to be discharged from, any vessel, without a cer- 
tificate of discharge being in possession of said seaman, or shall aid 
or be concerned in any manner in the shipping, or offering to ship 
such seaman, the person thus offending shall be punished as for a 
misdemeanor. Any order given by such seaman for advance wages 
shall be void . 

Ao'taial §655. ( 1550, 1551. ) Aiding or inducing seaman or apprentice to desert. 

p- w. If any person shall aid an articled seaman or apprentice to desert from 
or leave his vessel while in the waters of this State, or shall inveigle, 
entice, convey away, abduct, or carry, with or without violence, or 
secretly carry off an articled seaman or apprentice from any such 
vessel, or shall board such vessel with intent to do so, he shall be 
punished as for a misdemeanor. 

92*d£ §656. (1552.) Harboring seamen or apprentices . If any person shall 
harbor, secrete, entertain, lodge, or keep, an articled seaman or 
apprentice, or shall, directly or indirectly, suffer the same to be 
done in or about his house or premises, knowing such seaman or 
apprentice to have deserted from his vessel, he shall be punished as 
for a misdemeanor. 

A sufficient indictment: 73 Ga. 747. 



173 TENTH DIVISION.— ARTICLE 10. 57 

Pension applications. 

ARTICLE 40. 

PENSION APPLICATIONS. 

§657. Fees not to be demanded in reference to pension applications. If Act^i^?. 
any claim ageDt, or other person, shall demand of, or collector ^w (?/ '^ L& 
receive from, any beneficiary under section 1254 of the Civil Code, 
any fee or commission for service rendered in preparing and present- 
ing an application for a pension as prescribed in said section, he 
shall be guilty of a misdemeanor. 



§§658,660 ELEVENTH DIVISION.— ARTICLE 1. 174 

Deceitful means or artful practices. 



tU^n-e ywitz^v 'ff-tf. 



ELEVENTH DIVISION. 



Offenses Committed by Cheats and Swindlers. 



A 



£-j^4 3LvJT* ff~l& % 



ARTICLE 1. 



DECEITFUL MEANS OR ARTFUL PRACTICES. 

Cobb. 820- §658. (4587.) Fraudulently obtaining credit. If any person, by 
Actsisw, f a i S e representation of his own respectability, wealth, or mercantile 
correspondence and connections, shall obtain a credit, and thereby 
defraud any person of any money, or other valuable thing, or shall 
cause or procure others to report falsely of his honesty, respecta- 
bility, wealth, or mercantile character, and by thus imposing on 
the credulity of any person, shall obtain a credit, and thereby 
fraudulently get into possession of goods, or other valuable thing, 
he shall be deemed a cheat and swindler, and shall be punished as 
for a misdemeanor, and he shall be compelled by the sentence of 
the court to restore to the party injured the property so fraudu- 
lently obtained, if it can be done. 

Indictment for fraudulently mortgaging a "dark-bay mare mule" is not 
supported by proof of a "mouse-colored mare mule named Mag" : 83 Ga. 381. 

Defendant not relieved by showing that he owned other property than that 
represented, and of much less value: 86 Ga. 197. 

Representations that he was solvent, etc., are representations of respect- 
ability and wealth. The rule where false representations are mixed with 
true ones : 88 Ga. 91. Defendant lied as to which railroad he was working for: 
77 Ga. 779. 

"Where the representations consisted of two parts, one relating to the own- 
ership of property and the other to a contract for executing certain work: 
91 Ga. 148. 

A fine of $1,000 is not excessive when the fruits of the crime amounted to 
more than $900: 88 Ga. 91. 

AetoiJjjhi §659. (4588.) Cheating at play. If any person shall, by any 
p. 233. fraud or ill practice, in playing at any game, or in or by bearing a 
share or part in the stakes, or in or by betting on the sides or hands 
of such as do or shall play, obtain or acquire to him, or to any 
other, any money or other valuable thing, he shall be deemed a 
cheat, and shall be punished as for a misdemeanor. 



175 ELEVENTH DIVISION.— ARTICLE 1. 660-466 



Deceitful means or artful practices. 



§060. (4589.) Bakers and others selling wader assize. Any baker or°j 

other person selling bread under the assize established by the cor- p-^m. 
poration of any city, town, or village, or the rule's laid down by law, 
shall be deemed a cheat, and shall be punished as for a misde- 
meanor. 

§661. (4590.) Selling by false weights and measures. If any person 2ct?iJ£«, 
shall knowingly buy or sell by false weights or measures, lie shall J^Y* 
be deemed a common cheat, and shall be punished as for a misde- P* m 
meanor. 

§662. (4591.) Forestalling, regrating and engrossing. Any person ^^ 88W ' 
who shall commit the offenses known to the common law as fore- 
stalling, regrating, or engrossing, may be prosecuted and punished 
as for a misdemeanor. 

§663. (4592.)- Counterfeiting brands or marks, etc. If any person ±£hwh, 
shall fraudulently counterfeit, or be concerned in fraudulently p - m 
counterfeiting any brand or mark directed by law, or shall fraudu- 
lently cause or procure the same to be done, or shall use, export, 
sell, exchange, barter, or expose to sale^ anything upon which a 
brand or mark is directed by law to be made, with such counterfeit 
brand or mark, knowing the same to be false and counterfeit, he 
shall be deemed a cheat, and be punished as for a misdemeanor. 

§664. (4593.) Putting dirt or rubbish into cotton, rice, etc. Any per- 2c b s b i 8 8 7 4 2 ; 
son who shall put, or cause to be put into any bale of cotton, vessel p - 22 - 
of sugar, rice, pork, beef, or other provisions, wool, or other article 
prepared for market, any dirt, rubbish, or other thing, for the 
purpose of adding to and increasing the weight or bulk of said 
cotton, sugar, rice, beef, pork, or other provisions or things, shall 
be deemed a common cheat, and shall be punished by a fine equal 
to the value of the thing thus fraudulently packed or put up, and 
imprisonment and labor in the penitentiary for not less than one 
year nor more than five years. The bare possession or ownership of 
such commodities, so fraudulently packed or put up, shall not, of 
itself, authorize a conviction, where sufficient evidence of knowledge 
or privity on the part of the owner, or the person in possession, may 
not be produced on the trial. 

§665. (4594.) Falsely personating another. If any person shall Jjjjj^ J?- 
falsely personate another, and thereby fraudulently obtain any p* 68, 
money, or other thing of value, or with the intention of thereby 
fraudulently obtaining any money, or other valuable thing, he shall 
be deemed a cheat and swindler, and shall be punished by imprison- 
ment and labor in the penitentiary for not less than one year nor 
longer than five years. 

§666. (4596.) Personating another as witness or otherwise, etc. If Co&b»aaa. 
any person shall falsely represent or personate another, and in such 



§§667-670 ELEVENTH DIVISION.— ARTICLE 1. 176 

Deceitful means or artful practices. 

assumed character answer as a witness to interrogatories, or do any 
other act in the course of any suit, proceeding or prosecution, or in 
any other way, or matter, or thing, whereby the person so person- 
ated or represented, or any other, might suffer damage, loss or injury, 
he shall be punished by confinement and labor in the penitentiary 
for not lees than one year, nor more than five years. 

Artsiaii^ §^7. (4597.) Lying to obtain indorscrs or other security. If any 
person, by false representation of his solvency ; shall induce another 
to become his bail, indorser or security, upon any instrument for 
the payment of money, or performance of any personal duty, know- 
ing at the time that he is insolvent, and such bail, indorser or secu- 
ity shall suffer loss or damage in consequence of such undertaking 
and liability on his part, he shall be guilty of a misdemeanor. 

A p 0t |o 18 ' 3, §668. (1978.) False information as to liens . A person who has given 
ists! p!47! a li en under section 2800 of the Civil Code, or any other lien, shall, 
is95^ 1 p'P257* when gi yin g a new li en under said section on the same property to 
another person, inform such person, if interrogated as to the facts, 
of the amount of such prior lien and to whom given. If he gives 
false information as to said facts, he shall be punished as for a mis- 
demeanor. 

Act 59 1859, §669. (4599. ) Deceiving as to existence of lien. Any person who shall, 
in the sale or disposing of any property, either real or personal, de- 

p. 2oO. 

fraud another by falsely representing that such property is not sub- 
ject to any lien, knowing the same to be subject thereto, or who 
shall fraudulently make a second deed of conveyance to any land or 
real estate to another, shall be punished as for a misdemeanor. 

Cobb. 822. §670. (4595.) Other offenses of like kind. Any person using any 
p. 233. deceitful means or artful practice, other than those which are 
mentioned in this Code, by which an individual, or the public, is 
defrauded and cheated, shall be punished as for a misdemeanor. 

Any act by which another is defrauded and cheated, makes the offender a 
cheat and swindler: 32 Ga. 252. The offense may be committed by false rep- 
resentation of a past or existing fact, although a promise be part of the induce- 
ment to part with the property : 90 Ga. 437. 

To receive money on a promise to work it out and then refuse, does not make 
the offense: 45 Ga. 128. 

Knowingly to misrepresent a blind horse as sound, the eyes being apparently 
good, within the section : 58 Ga. 408. If the defects are patent, not within it, 
even if he represented the mare to be "all right" : 94 Ga. 599. That a cow was 
a "three-gallon cow/' when her capacity was less than one gallon, within it: 
94 Ga. 601. Cheating in writing a promissory note for an illiterate person: 
89 Ga. 788. One by falsehood and artifice and -a confederate obtains a bill of 
sale to, and possession of, personal property : 93 Ga. 547. 



177 KLKVKNTIF DT VISION.— A IlTICLES 2, 8. 71 672 



Wrongful sale of mortgaged property. Sale of property under lien. 



ARTICLE 2. 

WRONGFUL SALE OF MORTGAGED PROPERTY. 

§071. (4000.) Wrongful sale of mortgaged property. If any person, Actrisn-a, 

after having made a mortgage-deed to personal property, shall sell Jggi i 
or otherwise dispose of said property before the payment of theM0&»P 
mortgage debt, without the consent of, and with intent to defraud, 
the mortgagee, and loss shall thereby be sustained by the holder of 
the mortgage, the offender shall be punished as for a misdemeanor. 

Constitutional : 85 Ga. 349. » 

The gist of the offense is the sale or disposition of the property so as to de- 
feat the rights o*f the mortgagee: 55 Ga. 179; 69/743; 79/638. 

The words "or otherwise dispose of" mean a disposition of the property in 
the nature of a sale: 85 Ga. 349. The "loss" may be of the security or its 
value, more expensive collecting the debt, or prosecuting the remedies, or the 
debt or a part thereof: 79 Ga. 638. 

A judgment against bail in an action ex delicto was an indebtedness within 
the section : 85 Ga. 349. 

A crop of cotton and corn mortgaged in May and sold in November, is, when 
sold, personal property under mortgage: 94 Ga. 770. Defendant sold nothing 
which he could have mortgaged : 69 Ga. 744. 

Parol evidence inadmissible to show a mistake in the mortgage : 55 Ga. 179 ; 
83/382. Original mortgage, if recorded, admissible without proof of execution, 
and if lost, copy admissible : 85 Ga. 348. Mortgagee could testify as to payments 
made by him on the debt he became surety for: 85 Ga. 349. Failure to pro- 
duce, or point out, the property to the officer, may be circumstance to indicate 
fraud : 79 Ga. 638. Fraudulent intent not shown : 69 Ga. 744. 

Fine double the amount of the debt, not excessive: 85 Ga. 348. 

The following are notes of decisions rendered when section 4601 a was in 
the Code of 1882 : 

The sale is the consummation of the crime and fixes the venue : 69 Ga. 743. 
City court in the county of his residence and where the crime was committed, 
is a proper court : 85 Ga. 348. Indictment must allege that the crime was com- 
mitted where the prosecution was pending: 83 Ga. 497. Unconstitutional, 
where it affirmatively appears that the crime was committed in a county other 
than that of his residence : 94 Ga. 768. 



ARTICLE 3. 

SALE OF PROPERTY UNDER LIEN. 

§072. (4000 a.) Sale of property under lien. The provisions of Acteisre, 

section 071 of this Code shall be extended to and include liens for 1S7(3 - p- m - 

rent and advances made upon crops, by landlords, employers, or 

others, as authorized by law. A violation of the provisions of this 

section shall be a misdemeanor. 

This is a remedy for the landlord : 80 Ga. 397. 
12 



§§67&-676 KLKVENTH DIVISION.— ARTICLES 4,5. 178 



Selling or encumbering personal property hold under conditional purchase. Fraudulent entries, etc. 



ARTICLE 4. 

SELLING OK ENCUMBERING PERSONAL PROPERTY HELD UNDER 
CONDITIONAL PURCHASE. 

m? 88 " 8, §673. Selling or encumbering personal property held under conditional 
'■" •'*■ purchase. When a person holds personal property under a condi- 
tional purchase and sale, and by the terras of the purchase the title 
is retained by the vendor until the purchase price is paid, he shall 
not. without the consent or approval of the vendor, sell or encumber 
the property with intent to defraud the vendor or defeat his rights, 
or when such selling or encumbering the property tends to the injury 
of the vendor. A violation of this section shall be a misdemeanor. 

Original Act unconstitutional as to the words "disposed of" : 94 Ga. 766. 

Vendor under no duty to record the contract of sale or take other precau- 
tions against loss from a wrongful sale: 85 Ga. 220. 

"Where there is no evidence of good faith in selling property by accused, 
charge on the subject declined : 85 Ga. 220. 

If vendee is permitted to sell on condition that he pay the proceeds to the 
vendor, and he does not comply, the sale is not criminal : 94 Ga. 767. Variance 
between allegation of "one bay horse" and proof of "Texas pony," cured by 
prisoner's statement, and State's evidence allowing jury to infer that the Texas 
pony was a bay horse: 94 Ga. 767. 

Act f 1 2 882 " 3, §674. Settlement of cases. The presiding judge may permit the 
parties at interest to settle the prosecution, prior to conviction, upon 
payment of the amount due the vendor and the costs of the prosecu- 
tion. 



ARTICLE 5. 



FRAUDULENT ENTRIES AND PRACTICES IN SPEED CONTESTS. 

^ t 224 890 " 1, §675. Entering animals under false names, etc. If any person shall 
knowingly and corruptly enter, or cause to be entered, for competi- 
tion, or to compete for any prize, purse, premium, stake, or sweep- 
stakes, offered by an agricultural society or driving club, or other 
society opganized under the laws of this State, where the same is to 
be decided by a contest of speed, any horse, mare, gelding, colt or 
filly, under an assumed or false name, or out of its proper class or 
division, with intent to cheat or deceive such society or organization 
or association, he shall be guilty of a misdemeanor. 

A p Ct 224 8{K '~ 1 ' §070. Rules for determining class or division in which entry is made. 
The class or division in which an entry is made, within the meaning 
of this Article, shall be determined by the rules of the society, organi- 
zation or association under whose auspices the contest is to be con- 



179 ELEVENTH DIVISION.— ARTICLES 6, 7. 8. |§677 



Fraud by a limited partner. Illegally measuring lumber. Landlords and croppen 



ducted, and the published terms and conditions under wrhich the 
prize, purse, premium, slake or sweepstake is offered, opened or 

announced. 

§677. True name, of animal within meaning of this Article. The true^ajj** 1, 
name of any such animal shall be the name by which it is known. 
according to the rules of such society, organization or association; 
and the name by which any such animal has once competed for any 
prize, purse, premium, stake or sweepstakes, shall be regarded as its 
true name, unless the name is changed as provided by said rules. 



ARTICLE 6. 

FRAUD BY A LIMITED PARTNER. 



§678. ( 1938. ) Partners guilty of fraud, etc. Every partner who shall SSftaE" 
be guilty of any fraud in the affairs or business of a limited part- p> "• 
nership, shall be liable, civilly, to the party injured, to the extent of 
his damage, and shall also be punishable as for a misdemeanor. 



ARTICLE 7. 

ILLEGALLY MEASURING LUMBER. 

§679. (4602.) Illegally measuring lumber. If any measurer and in- ^ct-^isS-s, 
spector of timber, appointed under the laws of this State, or any per- p - 283, 
son not being an official measurer and inspector, shall measure any 
timber otherwise than as required by law, he shall be guilty of a mis- 
demeanor. This provision shall not apply when the measurement is 
not for the purpose of being used in the sale of the timber, or to any 
case where the parties buying and selling contract to have the timber 
measured other than according to the laws of this State. 



ARTICLE 8. 



LANDLORDS AND CROPPER8. / § ' 

§680. Illegal sale by cropper, refusal to deliver by landlord. Any AetyMB^ 
cropper who shall sell or otherwise dispose of any part of the isw.p.iia. 
crop grown by him, without the consent of the landlord, and before 
the landlord has received his part of the entire crop and payment in 
full for all advances made to the cropper in the year the crop was 
raised, to aid in making it, shall be guilty of a misdemeanor. And 
any landlord who shall fail or refuse, on demand, to deliver to the 



8868MB4 ELEVENTH DIVISION.— ARTICLE 9. 180 

Overcharges by railroad officials, and false billing, etc., by carriers. 

cropper the part of the crop, or its value, coming to the cropper, after 
payment for all advances made to him as aforesaid, shall likewise be 
guilty of a misdemeanor. 



ARTICLE 9. 



OVERCHARGES BY RAILROAD OFFICIALS, AND FALSE BILLING, ETC., 

BY CARRIERS. 

^TaK 885 "* 1 §081. (4608.) Railroad officials overcharging. Any officer, agent, or 
other employee of a railroad company, who shall charge for trans- 
porting freight or passengers over said railroad, above the rates 
allowed by their several charters, or established by the superin- 
tendent, or other officer or officers of said railroad, on conviction 
before the superior court, shall be punished as for a misdemeanor. 

A J ?t ^ 889, §082. False bills or classifications by carriers. Any common carrier 
of freights within the limits of this State, or whenever such common 
carrier is a corporation, any officer or agent thereof, or any person 
acting for or employed by such corporation, who, by means of false 
billing, false classification, false weighing, or false report of weight, 
or by any other device or means, shall knowingly and willfully assist, 
or shall willingly suffer or permit, any person to obtain transporta- 
tion for property from and to points within the limits of this State 
at less than the regular rates then established and in force on the 
line of transportation of such common carrier, shall be guilty of a 
misdemeanor. 

Act ^ 889 ' §683. False billing, etc., by consignor or consignee. Any person, and 
any officer or agent of any corporation or company, who shall deliver 
property for transportation from and to points within the limits of 
this State to any common carrier of freights within this State, or 
for whom, as consignor or consignee, any such carrier shall trans- 
port property, who shall knowingly and willfully, by false billing, 
false classification, false weighing, false representation of the con- 
tents of the package, or false report of weight, or by any other 
device or means, whether with or without the consent or connivance 
of the carrier, or its agent, obtain transportation for such property 
at less than the regular rates then established and in force on the 
line of transportation, shall be guilty of a misdemeanor. 

A f t i r A 88{ '' §084. Inducing or aiding in unjust discrimination. If any such per- 
son, or any officer or agent of any r;uch corporation or company, shall, 
by payment of money or other thing of value, solicitation, or other- 
wise, induce any common carrier of freight within this State, or any 
of its officers or agents, to discriminate unjustly in his or its favor, 
as against any other consignor or consignee, in the transportation of 



181 ELEVENTH DIVISION.— ARTICLE 10. 



Wrecking a railroad compa 



property from and to points in this State, or shall u\<\ or abel any 
common carrier in any such unjust discrimination, he shall be 
guilty of a misdemeanor. 



ARTICLE 10. 

WRECKING A RAILROAD COMPANY. 

§685. Wrecking a railroad company. Any person who is a director ^f^J 98 ' 
or other officer or agent of a railroad company owning a railroad 1%J ' p% - 
situated in whole or in part in this State, who shall either alone or 
in conjunction with any other person, whether such person is or is 
not an officer, stockholder or agent in a railroad company, do any 
act with the intent and purpose to wreck said company, by which 
said act, either alone or in conjunction with other acts, the company 
is wrecked, shall be punished by confinement in the penitentiary for 
not less than three nor more than twenty years. 

§686. Attempting to wreck a railroad company. Any person who is a ^f^ 892 ' 
director or other officer or agent of a railroad company, situated as 1895, p - m - 
aforesaid, who shall do any act with the intent and purpose to wreck 
said company, although by the act the company is not thus wrecked, 
shall be guilty of an attempt to wreck said company, and shall be 
punished by confinement in the penitentiary for not less than one 
year nor more than ten years. 

§687. Conspiring to wreck a railroad company. Any person, not a ^fn 892 ' 
director or other officer or agent of a railroad company, situated as 
aforesaid, who shall conspire with any director or other officer or 
agent of said company, to do any act with the intent and purpose to 
wreck the company, or who shall induce or agree with any person who 
is a director or other officer or agent of said company, to do any act 
with the intent and purpose to wreck it, by which said act the company 
is wrecked, shall be guilty of the offense of railroad wrecking and 
shall be punished as provided in the first section of this Article. 

§688. Conspiring to ivreck a railroad company but failing. Any per- *p Ct ^ 2 S9 ' 2, 
son not a director, agent or other officer of a railroad company situ- 
ated as aforesaid, who shall conspire with a director, agent- or other 
officer of said company to do any act with the intent and purpose to 
wreck said company, or who shall induce or agree with any person 
who is a director, agent or other officer of said company to do any 
act with the intent and purpose to wreck said company, although by 
which said act the company is not thus wrecked, shall be guilty of 
an attempt to wreck said company and shall be punished as pro- 
vided in the second section of this Article. 

§689. Wrecking defined. In contemplation of this Article the crime "p 01 ^ 892, 
of railroad wrecking shall be complete, when in consequence of any 



$§690,691 ELEVENTH DIVISION.— ARTICLE 11. 182 



Acts 1882 
p. 112. 



Declaring unearned dividends. 



act with fche intent and purpose as aforesaid, either taken singly or 
in conjunction with other acts, said railroad company has been ren- 
dered insolvent, or has been seized under any judicial procedure 
in consequence of insolvency, either by the appointment of a perma- 
nent receiver to take possession of the same, or under final process 
for the sale of the same. 

§690. Evidence of intent to wreck. Any act done by any parties 
subject to the provisions of this Article, with the intent and purpose 
to depreciate the value of the stock of said railroad company, shall be 
taken as prima facie evidence of an intent to wreck said company: 
Provided, that nothing herein contained shall exclude from the con- 
sideration of the court and jury any other fact which under the rule 
of law shall be proper evidence of the existence of such intent on 
the trial of any person indicted and tried under the provisions of 
this Article. 



ARTICLE 11. 

DECLARING UNEARNED DIVIDENDS. 

§691. (4604a, 4604b.) Improper dividends. No joint-stock com- 
pany, corporation, or other association, shall declare any dividend, 
or distribute any money among its members as profits, when such 
dividend, or money, is not the legitimate proceeds of its investments. 
Any president, director or other officer or agent of any joint-stock 
company, corporation, or other association, violating the provisions 
of this section, shall be guilty of a misdemeanor. 



188 TWELFTH DIVISION.— ARTICLES 1,2. g§692-695 



Destroying books or papers, landmarks, and buoys, etc. Burning fences or crops, and letting fire 



TWELFTH DIVISION. 



Fraudulent or Malicious Mischief. 



ARTICLE 1. 

DESTROYING BOOKS OR PAPERS, LANDMARKS, AND BUOYS, ETC. 

§692. (4605.) Destroying books or papers of value. If any person JjiJJ^ 
shall fraudulently or maliciously tear, burn, or destroy any deed, P- ,;:J 
lease, will, bond, or other writing sealed, or any bank-bill or note, 
check, draft, or other security for the payment of money or the 
delivery of goods, or any public security of this State, or of the 
United States, or any of them, for the payment of money, or any 
receipt, or discharge of any debt, suit, or other demand, or any 
transfer or assurance of money or other property, or any letter of 
attorney, or other power, or any book of accounts, or any agreement 
or contract whatever, with intent to defraud or injure any person, 
or body politic, he shall be punished by imprisonment and labor in 
the penitentiary for not less than one year nor longer than four 
years. 

§693.(4606.) Altering or removing landmarks . If any person shall 5°JJils£' 6 
knowingly, maliciously or fraudulently cut, alter, or remove any p - - m - 
certain boundary tree, or other allowed landmark, to the injury of 
another, he shall be guilty of a misdemeanor. 

§694. (4607.) Buoys, beacons, etc. If any person shall, maliciously 
or without authority, cut down, remove or destroy any beacon or 
buoy, erected by any commissioners of pilotage, or other person 
duly authorized for that purpose, he shall be punished by confine- 
ment and labor in the penitentiary for not less than two years nor 
longer than five years. 



ARTICLE 2. 

BURNING FENCES OR CROPS, AND SETTING FIRE TO WOODS. 

§695. (4608.) Willful and malicious setting fire to or burning fence*. £S^Sf.5| 
etc., not in a town or city. If any person shall willfully and mali- pp •.,"-■ ~l\ 

' V J XT . 1882-3, p. «. 

ciously set fire to or burn the fences, or stacks, piles or shocks of 



§§696-702 TWELFTH DIVISION.— ARTICLES 8,4. 184 



Injuries U> bridges and dams. Killing or maiming cattle, and cruelty to animals. 

com, fodder, grain, straw or hay, or crops not gathered in the field, 
of another, not in a town, village, or city, he shall be punished by 
imprisonment and labor in the penitentiary for not less than one 
year nor longer than three years. 
~:ss::;. §§QQ (4008.) When in a town or city. If the fence, stack, shock 
or pile, mentioned in the preceding section, be in a city, town or 
village, the willful and malicious burning thereof shall be punished 
by imprisonment and labor in the penitentiary for not less than two 
years nor longer than five years. 

A .^^ lss "" :> ' §097. (40(^.) When the fire is communicated to a house. If the fire 
from the burning mentioned in the preceding section be communi- 
cated to a house, the punishment shall be imprisonment and labor 
in the penitentiary for not less than five years nor longer than 
twenty years. 

Steias § 6 $8. ,{#(&.) Setting fire to ivoocls. If any person shall willfully 



ft- 



^ - :::; - and mM^ious}y set on fire, or cause to be set on fire, any woods, 
lands or marshes, so as to cause loss or injury to another, he shall 
be guilty of a misdemeanor. 

Ac!> b il| 4 -6. § 699 - (-1610.) Taking from fence for fuel If any person shall 
wrongfully take from the fence or other inclosure of another, any 
rail or other material of which it is made, for the purpose of using 
the same as fuel, he shall be guilty of a misdemeanor. 



ARTICLE 3. 

INJURIES TO BRIDGES AND DAMS. 

£?tei8 §700. (4611.) Breaking bridges, dams, banks, etc. If any person 

shall unlawfully, willfully, and maliciously break down, open, cut 
through, injure or destroy any bridge, river or meadow bank, rice- 
dam, mill-dam, or any other dam or bank, he shall be punished by 
confinement and labor in the penitentiary not less than one year 
nor longer than three years. 

V, i'T"'"'' §"i"01. (4611 a, 4611 b.) Encamping or building a fire upon, within, 
or under a bridge. If any person shall encamp, or build a fire, upon, 
within, or under a public or private bridge, without the consent 
of the owner, he shall be guilty of a misdemeanor. 



ARTICLE 4. 

KILLING OR MAIMING CATTLE, AND CRUELTY TO ANIMALS. 

Hie, §702. (4612.) Killing or maiming cattle or hogs . If any person shall 

i&m* p 73 ma ^ciously.maim or kill any horses or cattle, or shall maliciously 

maim or kill a hog, he shall be guilty of a misdemeanor. When 



185 TWELFTH DIVISION.— ARTICLE 5. -706 



Putting children to dangerous or Improper vocation*. 



the person killing or maiming such anima] Bhal] sei np aa a defene 
that the killing or maiming was done, not from malice toward the 

owner, but to prevent injury to the defendant's crop or oilier prop- 
erty, such defense si mil not avail to acquit the defendant unless it 
be made clearly to appear that the crop or oilier property wan pro- 
tected by a substantial fence not less than four and a half feel high. 

This is exhaustive of the class of animals upon which the offense of mali- 
cious mischief could be committed : 93 Ga. 115. The word "maim" is to be 

understood, in its technical signification. The mere shooting of a cow is not 
criminal, but only the killing or maiming of cattle, or the killing of a hog: 
65 Ga. 410. This before the Act of 1880-1 : 93 Ga. 115. 

Not necessary to prove actual ill will, or resentment towards the owner: 
28 Ga. 190. It is a good defense if the mule was shot to protect the crop of 
accused and not from ill will or cruelty: 30 Ga. 325. In addition to a denial 
.of the killing, accused may set up the defense mentioned in the proviso with- 
out specially pleading it : 70 Ga. 723. 

§703. (4612 a.) Cruelty to animals. Every person who shall A p ct ^ 878 " 9 ' 
instigate, engage in, or do anything in furtherance of an act °f ]!£?' p' 112' 
cruelty to a domestic animal, shall be punished as for a misde- **Kjfc 
meanor. 

§704. (4612 d.) Disposition of fines. All fines collected under A p ct ^ 878 " 9 ' 
the provisions of the preceding section shall inure, one half to the 
public-school fund of the county, and the other half to any society 
whose object is the prevention of cruelty to animals, which is 
incorporated by proper authority in this State, and whose officer or 
agent has prosecuted the case in which the fine is imposed; and where 
the prosecutor is some person other than such agent or officer, then 
half of the fine shall be paid into the county treasury. 

§705. (4612 e.) Cruelty defined. The word "cruelty" shall be^J* 8 * 
held to include every willful act, omission or neglect, whereby 
unjustifiable physical pain, suffering, or death is caused or per- 
mitted. 

To cruelly drive and cruelly treat a horse is an offense. The extent to 
which the treatment reduced the value of the horse may be shown : 81 Ga. 165. 
Venue not proven : 69 Ga. 768. Punished as a misdemeanor: 81 Ga. 165. 



ARTICLE 5. 

PUTTING CHILDREN TO DANGEROUS OR IMPROPER VOCATIONS. 

§706. (4612 f.) Putting children to dangerous or improper voca- Acts is:s- 
tions. Any person who shall sell, apprentice, give away, let out. or 
otherwise dispose of any child under twelve years, to any person, for 
the vocation, occupation, or service of rope or wire walking, begging, 
or as a gymnast, contortionist, circus-rider, acrobat or clown, or for 



|§707-711 TWELFTH DIVISION .—ARTICLE 6. 186 



Injuring turnpike and navigation fixtures, tiring or sinking vessels, and other acts, etc. 



any indecent, obscene or immoral exhibition, practice or purpose, 
shall be guilty of a misdemeanor. 

^PSf 8 "*' §707. (4612f.) Receiving and using child. Whenever a child 
shall be disposed of in violation of the preceding section, the per- 
son who. under such selling, apprenticing or letting out, shall receive 
and use such child for any of the purposes condemned in said sec- 
tion, shall be guilty of a misdemeanor. 

^jf"' §708. (4612 h.) Cruelty to children. Whoever shall torture, tor- 
ment, deprive of necessary sustenance, mutilate, cruelly, unrea- 
sonably and maliciously beat or ill-treat any child, or cause any of 
said acts to he done, shall be guilty of a misdemeanor. 



ARTICLE 6. 



INJURING TURNPIKE AND NAVIGATION FIXTURES, FIRING OR SINKING 

VESSELS, AND OTHER ACTS OF MALICIOUS MISCHIEF. 

Cobb. 824. §709. (4613.) Turnpike and navigation fixtures. If any person shall 
p. 283. maliciously injure or destroy any turnpike gate, or any post, rail, 
wall, chain, bar, or other fence belonging to any turnpike gate, or 
any house erected for the use of such turnpike gate, or shall willfully 
and maliciously injure or destroy any lock, or other works erected to 
protect and secure the navigation of any river or canal, he shall be 
punished by imprisonment and labor in the penitentiary for not less 
than one year nor longer than four years. 
Cobb. 824. §710. (4614.) Firing or sinking vessels. If any person shall willfully 
p. 233. and maliciously burn or set fire to any ship, or other vessel above 
the value of two hundred dollars, alongside of any wharf, or at 
anchor in any river, or in any waters in this State, or if any person 
shall willfully and maliciously make, or assist in making any hole 
in the bottom, side, or any part of any ship, or other vessel, above 
the value aforesaid, or do any other act tending to the loss or de- 
struction of such ship, or other vessel, he shall be punished by 
imprisonment and labor in the penitentiary for not less than three 
years nor longer than seven years; and if the ship, or other vessel 
thus injured or destroyed, be of the value of two hundred dollars, 
or under that, he shall be guilty of a misdemeanor. 

AcSiIm" 5 ' §^11- letting fire to a ship, boat, barge or lighter. Any person who 
p- **• shall willfully and maliciously set fire to a ship, boat, barge, or 
lighter, or to the goods or cargo contained in or upon any such ves- 
sel, when it is moored to, or lying at, or near, any wharf in any port, 
shall be punished by imprisonment in the penitentiary for not 
less than seven nor longer than twenty years. 



187 TWELFTH DIVISION —ARTICLE 6. (12-721 



Injuring turnpike and navigation fixtures, firing or sinking reettlf, and Other ■ >'■' 



§712. Setting fire defined. The offense embraced in the preceding 
section shall be complete when anyattempt La made to burn the ves- 
sel, or goods or cargo, though do materia] injury is the consequence. 

§713. (4615.) Cutting flown, trees. If any person shall willfully' 
and maliciously cut down, injure or destroy any tree planted or P* 281 
growing in any town, village, or city, or in any avenue, yard, garden, 
orchard, or plantation, for ornament, shelter, shade-, or profit. he 
shall be guilty of a misdemeanor. 

§714. (4616.) Mile or guide-posts. If any person shall willfully 
or maliciously break, deface, destroy, or remove a mile-stone' or posl 
or guide-board, erected upon a public road or highway, or alter any 
mark or inscription upon any such mile-stone, post, or guide-hoard. 
he shall be guilty of a misdemeanor. 

§715. (4617.) Obstructing highway . Any person who shall obstruct ^ts'itSJ!" 
a public highway, with a malicious intent, or shall do the same act ^^ 
without such intent, and fail to remove the obstruction on notice Pj 288 - 
from the overseer or commissioner of the road, shall be guilty of a 'ay^/ so 
misdemeanor. 

§716. (1455 e.) Leaving open or injuring gates or fences at crossings. A p t y 1 lstw ' 1, 
Any person who shall willfully and unlawfully leave open any gate. 18y °- p * 
or do any willful damage to the same, or to the fences, erected in 
pursuance of sections 1782 and 1784 of the Civil Code, shall be pun- 
ished as for a misdemeanor. 

§717. (4618.) Severing produce from the realty . If any person shall 2et?i8§Hi 
commit a trespass by willfully and maliciously severing from the p - 233 
land of another any produce thereof, he shall be guilty of a misde- 
meanor. 

§718. (4619. ) Injuries to coast-survey fixtures. Any person who shall ^a? 85 "*' 
willfully or wantonly injure, deface or remove any signal, monument, 
building, or any other appendage thereto, erected within the State 
by virtue of any act of Congress authorizing a coast survey, shall be 
guilty of a misdemeanor. 

§719. (4620.) Injuries to public burying-grounds. Any person who Act .> 7 li7 ' D - 
shall willfully or wantonly injure or destroy any inclosure around r ?^ 
or within any public or private burying-ground, or any monument, 
tombstone, or other fixtures therein, shall be guilty of a misdemeanor. 

§720. (4621.) Disturbing private burying-grounds. Any person who, 0obb - 54t5 - 
by himself, his agent or servants, shall mutilate, or in anywise injure 
or destroy, any private burying-ground which has been reserved in 
any private or public sale of the surrounding land, shall be guilty of 
a misdemeanor. 

§721. (4622.) Injuring fish-pond, etc. Any person who shall com- ^ : ^r "• 
mit a trespass upon an artificial fish-pond by fishing therein, or who 
shall willfully and maliciously destroy the fish therein or break the 



g§ 722-728 TWELFTH DIVISION.— ARTICLE 6. 188 

Injuring turnpike and navigation fixtures, firing or sinking vessels, and other acts, etc. 

dam thereof, or otherwise injure such pond, shall be guilty of a mis- 
demeanor. 

^kjb 1888, §722. (4623.) Injuring mining works. If any person shall unlaw- 
; fully, willfully and maliciously cut, break down, destroy, or in any 
manner injure or obstruct, or shall counsel and assist, or advise any 
person in any manner to injure, obstruct, break down or destroy any 
ditch, canal, flume, dome, or tunnel, made or used to control and 
convey water to any mine for mining purposes, or any of the appur- 
tenances to such ditch, canal, flume, dome, or tunnel, he shall be 
guilty of a misdemeanor. 

To cut down a dam used to maintain the flow of water in a ditch, is to injure 
the ditch: 62 Ga. 442. 

Possession and use by a shareholder, sufficient indicia of ownership. If 
accused asserts title to the dam, ditch or water, the title, or at least some 
apparent or probable right, must be proved: 62 Ga. 442. 

Act | 6 1862 " 3, §723. (4624.) Poisoning fish. Any person who shall poison any 
, jrv- lake, river, stream, or pond, with a view of poisoning fish therein, 

' / ~ b * shall be guilty of a misdemeanor. 

Act [ s J, SS0 " 1 ' §724. (4625 e.) Obstructing passage of timber. Any person who, 
by placing a boom in or across any watercourse which is navigable, 
or which may have been generally used for the purpose of rafting or 
drifting timber to market in this State, or by any other contrivance, 
shall prevent the free and usual passage of timber upon such water- 
course, and who for two days after being requested to do so by any 
person, his agent or employee, whose timber is detained by such boom, 
or other contrivance, shall fail to clear sufficient channel in such 
watercourse to allow the passage of the timber so detained, shall be 
guilty of a misdemeanor. Nothing in this section shall affect the 
ri glits of the owner of a stream not navigable, as provided in the 
Civil Code. 

§725. (500.) Injuries to public buildings. If any person shall de- 
signedly destroy, injure, or deface any public building, its appur- 
tenances or furniture, or shall use the same for an indecent purpose, 
he shall be punished as for a misdemeanor, besides being liable for 
the damages. 

A p t i f -V f '"' §726. (4626.) Digging ginseng. If any person shall dig ginseng, 

1806, p.68. other than that which is cultivated, before the first day of Septem- 
ber in each year, he shall be punished as for a misdemeanor. 

ActeiS65^ £727. (4430.) Injuring telegraph wires or fixtures. If any person shall 
willfully destroy or in any way injure the posts, wires, or fixtures of 
a magnetic telegraph company, he shall be guilty of a misdemeanor. 

A p Hb 1 ^ 1 °' §728. Injuries to arsenals, armories, etc. Any person who shall will- 
fully injure any arsenal or armory, or its fixtures, or any uniforms, 
arms or equipments, or other property therein deposited, shall be 
guilty of a misdemeanor. 



189 TWELFTH 1)1 VISION.— ARTICLE 7. '< 780 



Threatening to burn property of another. Ptf ^ty^^r £+^£j£*+ *~^< 

[720. (4027.) All other acts of malicious mischief. All other acts 



a q£ Cobb, *#&. 



willful and malicious mischief, in the injuring or destroying any 

other public or private property not herein enumerated, shall be 

misdemeanors. 

This section applies to inanimate property : 93 Ga. 1 J 1. And doe* not embrace 
any crime already defined in this Code: 80 Ga. 100. 

Sufficient to allege the ownership of the property and that defendant de- 
stroyed it, without alleging the amount of damage: 73 Ga. 41. 

The rule where a church is mentioned as owner, and the meaning where 
its benches, books, etc., are described as public property of the church: 
63 Ga. 168. 



ARTICLE 7. 

THREATENING TO BURN PROPERTY OF ANOTHER. 

§730. Threatening to burn property of another. Any person who shall Acts i8&3, 
threaten, by posting any writing or printed matter, to injure, dam- 
age or destroy, by burning or other means, any gin, gin-house, barn, 
dwelling, stable, storehouse, or any other house containing valuable 
property, shall be guilty of a misdemeanor. 



£§731-734 JUSTICES AND MAYORS OF TOWNS. 190 



Their jurisdiction. 



PEOCEDURE. 



CRIMINAL COURTS. 



Justices of the Peace, and Mayors of Towns. 



ARTICLE 1. 



THEIR JURISDICTION. 



^Artfe'sec §731. (437.) When removable from office. Justices shall be remov- 
JoDb r aaf ame on conv i c tion for malpractice in office, or for any felonious or 
infamous crime. 

§732. (445.) Their criminal jurisdiction. They have criminal 
jurisdiction in the following instances : 

1. In acting as conservators of and preserving the public peace in 
their respective districts and counties. 

2. In issuing warrants for the apprehension of any person charged 
on oath with a violation of any portion of the Penal Code, or who is 
so know]) to them officially. 

3. In examining such person when brought before them, and to 
commit, bind over or discharge, according to the directions of this 
Code. 

§733. (448.) Jurisdiction extends over the county. Their criminal 
jurisdiction extends over persons of, or crimes committed in, their 
respective counties. 

A £ r in m ' ] ' §734. (792.) Jurisdiction of mayors. The mayors of towns and 
villages incorporated in pursuance of the provisions of the Civil 
Code, shall, within said towns and villages, have all the jurisdiction 
and powers of a justice of the peace in criminal cases. 



191 COUNTY COURTS. f85-742 

Jurisdiction of the court. Powers and duties of the judge. 



County Courts, 



ART! OLE 1. 

JURISDICTION OF THE COURT. 

§735. (282.) Jurisdiction in criminal cases. The county couri isa^J^ 
court of record, and has jurisdiction of all misdemeanors, except 
when exclusive jurisdiction may be given to another couri . 

§736. (282.) When the superior court first acquires jurisdiction.^^ 11 
When the superior court has first acquired jurisdiction of a misde- 
meanor, no county court shall have jurisdiction thereof while it is 
pending in the superior court. 

POWERS AND DUTIES OF THE JUDGE. 

§737. (282, 297.) Powers of the judge. The judge shall have all the x ^f 7 ^- 
powers of a justice of the peace, as to issuing warrants upon affi- 
davits made before him for criminal offenses, making preliminary 
-examinations under warrants, and committing or binding over the 
accused to the proper court. Said affidavits and warrants to be in 
the forms prescribed in sections 884 and 885 of this Code. 

The affidavit and warrant must conform to sections 884 and 885 of this Code. 
When for simple larceny, they need not describe the property, or state its 
value, or name the owner, or disclose whether it is a misdemeanor: 62 Ga. 583. 

§738. (306.) The county judge not to act ivith justice of the peace. "p Ct |^ 871 " 2 ' 
He shall not exercise jurisdiction in criminal cases in concurrence 
with a justice of the peace; all cases of misdemeanors brought before 
justices of the peace shall be turned over to the county judge for trial, 
and shall be treated by him as if originally brought before him. 

§739. (304.) Docket of criminal cases. He shall keep a docket of "p Ct |^ 871 " 2 ' 
.all criminal cases disposed of by him, and shall therein state the 
case, its nature and disposition, and shall, as in civil cases, keep 
carefully all the papers separate so as to be able at any time to make 
& true history of the cases disposed of. 

§740. (305.) Judge's power, etc. He shall, in the trial of criminal -p Ct .^ S72 ' 2, 
cases, have the same authority to preserve order and punish contempts 
as is given him in civil cases, and shall have the same control of the 
jail for the punishment of offenders as judges of the superior courts. 

§741. (310.) Warrants , etc., how directed. The county judge may, A p e %7 S71 " 2, 
in criminal cases, when he deems it necessary, direct his criminal 
warrants, orders and proceedings of all sorts, to the sheriff of the 
^county, to his own bailiff, or any lawful constable of the county. 

§742. (307.) Attendance of witnesses compelled. He shall have the ^yf 71 " 2, 
same authority to procure testimony and compel the attendance of 
witnesses in criminal cases as judges of the superior courts. 



&S74&-748 COUNTY COURTS. 192 



Exorcise of jurisdiction. Laws applicable. Solicitors. 



ARTICLE 2. 

EXERCISE OF JURISDICTION. 



Acts 1878-9 

p. lo5. 



§743. (299 e.) Jurisdiction, when exercised. The court may exercise 
its criminal jurisdiction at any session, monthly or quarterly; and, 
for the trial of any criminal case, may sit at any time after two days 
notice to the defendant, or immediately if such notice is waived. 

^MsT 8 * 9, £ 744 ' ( 31Tc -) Courts, where held. The court shall be held at the 
court-house, or where the superior court is held, and shall have the 
same power as to adjournments that the superior court has. 

A p Ct ^'4 S71 " §^5- (801.) Where judge may try cases. The judge may try crim- 
~j*j^' inal cases at any place in the county. 



ARTICLE 3. 



LAWS APPLICABLE. 



A p C %3 871 " 2 ' 8^6* (297,308.) Laws made applicable. Laws regulating contin- 
1 p" 1 296 nances in the superior court apply to this court. Laws applicable 
to criminal proceedings before justices of the peace and judges of 
the superior courts, not inconsistent with the provisions of this 
Article, and which can be applied to criminal proceedings before 
county judges, shall be applicable to them. 



ARTICLE 4. 

SOLICITORS. 



Act 9fe 189(J ' 1 ' §747. Solicitor's fees. The solicitor shall have the same fees as 
solicitors-general have for similar services, to be paid exclusively 
from the fines and forfeitures of this court, but this shall not affect 
or repeal any local law, existing on the twenty-first day of October, 
1801, in any county providing for the compensation of the solicitor 
of this court. 

Act i36 S78t '' §748. (209 f.) Solicitor of county court, appointment, duty, and 
compensation of. In any county court, which is not provided with a 
regular solicitor, the judge may, in a criminal case, appoint a mem- 
ber of the bar to act as prosecuting counsel, who shall exercise all 
the powers of a solicitor as to such case, and shall be entitled to 
the same compensation for services so rendered, as provided by law 
for the solicitor of the county court, or one acting as such. 



193 COUNTY OOCRTS. 749-762 



Mode of trial. Felonies. Proceedings when an Indictment if demanded, 
ARTICLE 5. 

MODE OF TRIAL. 

§749. (283 d, 299d.) Mode of trial. The trial and judgment shall 
be by the court, without a jury, in all criminal cases, where a jury ^/^ 
trial is not demanded by the accused. If defendant shall demand 
a jury trial, it shall be promptly allowed him; and the procur- 
ing and impaneling of the jury, and their services, shall be as 
prescribed in Article 9. 



ARTICLE 6. 

FELONIES. 



§750. (297.) Duty of judge as to felonies. When an accused person ^p 3 ^!', 1 " 
is brought before the judge, and, on examination, it appears that the 
offense committed is a felony, he shall be committed to jail to be 
held to answer the charge before the proper court. If the offense be 
bailable by a justice of the peace, the judge shall admit him to bail 
in the manner prescribed by law, at the time of ordering the com- 
mitment or at any time until the court having jurisdiction of the 
felony shall sit. 



ARTICLE 7. 

PROCEEDINGS WHEN AN INDICTMENT IS DEMANDED. 

§751. (297, 299, 299a.) Indictment demanded. When a case is A p ct i 3 4 878 " 9 ' 
first called for trial, the defendant shall be asked by the judge 
whether he demands an indictment or presentment by the grand 
jury. If he shall, in a writing signed by him, demand indictment 
or presentment, that fact shall be recorded, and he shall be commit- 
ted, or bound over, to the next superior court, having due regard to 
the laws concerning bail in criminal cases; and thereupon the war- 
rant, with an entry made thereon by the judge, of such demand and 
of the fact of bail or committal, with the bond, if any, shall be forth- 
with transmitted to the office of the clerk of the superior court, to 
be proceeded on then according to law. 

§752. (297.) Indictment sent down from superior court. If an in- 'p 01 ^' 1 " 2, 
dictment is found by the grand jury, the judge of the superior court. ^>*^2I^^ 
may, in his discretion, order it to be transferred, with all the papers ^ ^ — -^ry: 
in the case, to the county judge. After giving ten days notice to the 
prosecutor and the accused, the county judge shall proceed to dis- 
pose of the case in the manner prescribed for cases in which no in- 
dictment has been demanded. 
13 



§§753-756 COUNTY COURTS. 194 



Proceedings when there is no indictment. When a jury is demanded, and the trial. 

ARTICLE 8. 

PROCEEDINGS WHEN THERE IS NO INDICTMENT. 

A p ct .M^ 71 ' 2 ' §753. (299.) Accusation shall be drawn by the judge. When an in- 
dictment is not demanded, the judge shall frame a written accusa- 
tion based upon the affidavit charging the defendant. It shall be in 
the name of the State, shall be signed by the prosecutor, and shall 
state that it is based on the affidavit, and shall distinctly set forth 
the nature of the offense, and when, where, and by whom it was com- 
mitted. 

Court may try on accusation, unless prisoner demands an indictment — an 
express waiver is. not necessary : 63 Ga. 168. 

When too late to withdraw waiver of indictment : 67 Ga. 633 ; 89/340. When 
not too late to withdraw waiver of jury trial: 89 Ga. 340. 

A waiver of indictment and demand for a jury, is an agreement by the ac- 
cused and the State, to submit to all the terms of the law: 80 Ga. 44. 

Indictment may be demanded in any county court : 68 Ga. 293. 

The accusation may be based on the affidavit on which the warrant 
issued, though another would answer the purpose. It should be specific and 
particular and fully inform accused of the definite criminal transaction im- 
puted to him: 62 Ga. 583. Its requisites: 63 Ga. 168. 

The judge may reopen the case for testimony : 56 Ga. 601. 

^p Ct 2&4 871 " 2 ' §754. (299.) Defense. Defendants may plead to the merits, or 
demur to the accusation. If he demurs for insufficiency and the 
accusation is held to be insufficient, the judge shall hold the defend- 
ant and frame another accusation until a good one is obtained. 



ARTICLE 9. 

WHEN A JURY IS DEMANDED, AND THE TRIAL. 

A p %v 71 2 ' §755. (299.) When a jury is demanded. If , when the defendant is 
asked by the judge whether he demands an indictment, he makes no 
Huch demand, he shall then be asked whether he demands a trial by 
jury. If he demands a jury, the case shall be postponed until a jury 
can be summoned. 
A pp 5 .^ 71 ~ 2, §756. (298.) How jurors are procured. Jurors shall be procured in 
Jbh the following manner : Prom the list of persons liable to do jury 
p - 122 - duty, the judge shall make a list, and putting their names in a box 
kept for that purpose, he shall at each monthly term draw, by lot, 
the names of twelve jurors for the next term, for the trial of cases 
in which demands for jury trial are made, and shall have them sum- 
moned at least five days before the court at which they are to serve; 
but the judge may decline to have summoned any jury for that par- 
ticular term after it has been drawn, if in his judgment their attend- 
ance will be unnecessary, and all criminal cases, in which demands 



195 COUNTY COURTS. 757-761 

Offenses above jurisdiction and transferred <■■■> 

shall be made for trial by jury, within seven days before the term 

next succeeding, shall be triable at the second term when there is no 

jury at the first term. 

The judge is not.required to keep the list in his office, it is for use in fur- 
nishing the box : 63 Ga. 168. 

§757. (298.) Impaneling the jury. The judge shall test the im-'ifawL 
partiality of the jurors by the rules prescribed in this Code, and if p . 122. 
any of them appear to be incompetent, or if they shall be disquali- 
fied for any cause, they shall be discharged and tales jurors shall be 
summoned by the bailiff as tales jurors in the superior court are sum- 
moned, until an impartial jury is obtained. The defendant shall 
have four peremptory challenges and the State two, and the case 
shall be tried before six jurors. 

The accused is entitled to a jury of six to be stricken from a panel of 
twelve — accused having four challenges and the State two: 89 Ga. 393. 

§758. (299.) Full opportunity to plead, and time for an impartial A p ct | 9 4 871 " 2 ' 
hearing. The defendant shall be allowed full opportunity to plead 
and defend as in the superior court, and the accuser and accused 
shall have time for an impartial hearing. 

§759. (299.) Judge shall examine the witnesses. The judge shall, on ^^J 871 "" 2, 
the trial before him or a jury, make a thorough and careful exami- 
nation of all the witnesses, and in no case allow either the State or 
the accused to be prejudiced from the want of examination or cross- 
examination of the witnesses. After the" case is submitted, upon the 
evidence and the law, the judge, or the jury if a jury is demanded, 
shall, in ascertaining the guilt or innocence of the accused, be 
governed by the same rules as govern juries in criminal cases in the 
superior court. 

§760. (299.) The sentence or discharge. If the defendant is found A p ct |^ 871 " 2 ' 
guilty, the judge shall sentence him according to the laws governing 
judges of the superior court in misdemeanor cases. If he is found 
not guilty, he shall be discharged from the accusation. 






ARTICLE 10. 

OFFENSES ABOVE JURISDICTION AND TRANSFERRED CASES. 

§761. (299 b.) Offense above jurisdiction, prisoner bailed or commit- Acts^sTS-9, 
ted. If, after hearing the evidence on any trial, it shall appear to 
the court that the offense is beyond the jurisdiction thereof, the 
trial shall be discontinued, and the accused committed or bound 
over to the next superior court, according to the law of bail and 
commitment; and the proceedings shall be transmitted to the supe- 
rior court. 



§§762-767 COUNTY COURTS. 196 



Certiorari. 



Where accused waived indictment, and on the trial was bound over for a 
felony, he could not be convicted of a misdemeanor in the superior court: 
80 Ga. 4. 

'V^ 789 §76& (299 c.) Cases transferred from superior court, how tried. 
Such indictments, or presentments, as may be transferred to the 
county court by the superior court, shall be tried in the manner 
prescribed in this Article, except asking the defendant if he demands 
indictment or presentment. 

Securities in a transferred case, bound for the principal's appearance in this 
court: 77 Ga. 4. Judgment against sureties, appeal, acquittal of defendant,, 
sureties discharged : 77 Ga. 4. 



ARTICLE 11. 

CERTIORARI. 



A p c p t \^ 1 " 2 ' §763. (301.) Certiorari. The writ of certiorari lies for the correc- 
tion of error committed by the judge in his decision and judgment 
in criminal as in civil cases, and it shall be obtained under the order 
and sanction of the judge of the superior court of the county, upon 
the written petition, duly sworn to, of the defendant, stating the 
complaint, showing sufficient ground of error, and containing a brief 
of the material evidence. 
A p C %8 871 " 2, §"^4. (301.) When applied for and when heard. The writ must be 
1890-1. p. 62. applied for within thirty days after the trial, and may be obtained 
and disposed of either in term time or in vacation. 

It must affirmatively appear that the petition, duly sanctioned, was filed in 
the clerk's office within the time required: 69 Ga. 732; 64/751. 

^riJ) 8 " 12 ' §765- (302.) Affidavit and bond required. The writ shall not be 

£c*^k/Z^*-*4' granted unless the accused shall file his affidavit stating that he has 

not had a fair trial and has been wrongfully and illegally convicted, 

and shall also give bond and security, or make affidavit as is required 

/ tf \&^ °^ P ersons when carrying criminal cases to the Supreme Court. 

i ' j\ Writ dismissed for want of proper affidavit: 59 Ga. 764; 77/134. 

It is a condition precedent to the grant of the writ, that the affidavit shall 
be made, and also that the bond be given or the affidavit of inability made: 
77 Ga. 134 ; 59/764 ; 75/577. When the bond should be given : 75 Ga. 577. 
Affidavit on information and belief, not sufficient: 64 Ga. 751. 
Sending up bond as part of the proceedings, is an approval: 85 Ga. 237. 

A £ l m n ' 2, §766. (302.) When granted. If, upon examination, the judge of 
the superior court considers the petitioner entitled to the writ, he 
shall issue it directed to the county judge, as in civil cases, requiring 
him to certify and send up to the judge of the superior court a com- 
plete and accurate history of the case. 

A p Ct Jj, %71 ~ 2, §707. (303.) Hearing and determining the writ. The history of the 
case given by the county judge is his answer. It is subject to cor- 
rection and traverse as prescribed in civil cases, except that the 



197 COUNTY COURTS. §§708-774 

Coats, fines, pay of jurors, and forfeiture!. 

superior court judgo shall try the traverse. lie shall hear and de- 
termine the writ and return at anytime, after ten days notice to the 
accuser, and may then pass such judgment or sentence as, in review 
of the whole case, is consistent with justice and law. 

§768. (309.) Certiorari to verdict. When a trial by jury is had ^J^ 871 ' 2 ' 
and the accused is found guilty, and error by the jury is complained 
of, the judge of the superior court shall revise their proceeding by 
certiorari, obtained as is hereinbefore provided, and if a material 
error is discovered by him in the finding of the jury, he shall grant 
a new hearing before a jury to be had in the same mode as the first 
trial. The writ of certiorari in this class of cases shall be directed to 
the county judge, requiring him to certify all the proceedings before 
the jury to the superior court judge. 



ARTICLE 12. 

COSTS, FINES, PAY OF JURORS, AND FORFEITURES. 

§769. (300.) When accuser shall 'pay costs. If the accuser fails to ^l^ 871 " 2 ' 
prosecute the case, the judge shall render judgment against him for 
all costs, together with jail fees. If the judge or the jury believes 
the accusation to be malicious, he, or they, may so find and assess 
the costs against the accuser. 

§770. (300.) What costs allowed. The following costs are allowed : A p ct ^ 871 " a » 

In cases commenced, but not tried, two dollars shall be paid to 1873, p - 36 - 
the judge. In cases tried by the judge, or by him and a jury, three 
dollars shall be paid to the judge. 

The sheriff, deputy-sheriff, and bailiff, shall have the same fees as 
are allowed them for similar services in the superior courts. 

§771. (300.) Fines and costs. Fines and costs shall be collected as Act J^ 871 * 2 « 
they are in the superior court, and all fines shall be paid over to the 
county treasurer. 

§772. (298a.) Pay of jurors. Jurors serving in this court shall Aet ^ 880 " 1 » 
receive for their services the same pay as allowed traverse jurors in 
the superior court of the county in which they serve; but this pro- 
vision shall not apply to counties where the pay of county court • 
jurors is provided for by local law. 

§773. (300.) Judge shall pay costs to treasurer. All costs assessed "p 01 ^ 871 " 2 ' 
for the judge shall be paid by him, as fast as received, to the county 
treasurer, and he shall give an account thereof at each term of the 
court to the grand jury. 

§774. (300.) Forfeitures. The judge shall have jurisdiction to de- -p ^ 871 " 2 ' 
termine forfeitures, as other money demands, unless the amount 
involved exceeds his jurisdiction, when the bond shall be transmitted 
to the superior court for forfeiture, and all money collected thereon, 



§§77iVT$0 CITY COURTS. 198 



For the trial of misdemeanors. Prosecuting officer. 



Act? 1871 
p. 295. 



saw the expenses of collection, shall be paid by the county judge to 
the county treasurer. 

§775. (800.) Bailiff's insolvent costs. Costs due the bailiff, which 
have not been collected because of the insolvency of the defendant, 
shall be paid from the fines and forfeitures paid to the county treas- 
urer from cases in the county court. 
*V- m. °' §770. Justice's and constable's insolvent costs. Costs due justices 
iss9.p.ioi. am \ constables when parties have been bound over by the justice, or 
have been committed to jail in default of bail, and the grand jury 
make a return of no bill, or when, after an investigation of the case, 
the parties have been discharged by the justice, shall be paid out of 
fines and forfeitures in this court in the same manner as costs of the 
bailiff are paid. 



City Courts. 



ARTICLE 1. 

FOR THE TRIAL OF MISDEMEANORS. 

A p C % 1890 1 ' §777. City courts, their powers and jurisdiction. Upon the recom- 

1&84-5?' 10 "' niendation of the grand jury of any county having a population of 

p- m - ten thousand or more, there shall be a city court which shall have 

jurisdiction to try and dispose of all misdemeanors committed in 

said county. 

This court comes into legal existence as soon as the recommendation is 
made, and if the judge is appointed during the recess of the Senate, he may 
act before confirmation : 93 Ga. 1. 

Act | 7 J 884 " 5 ' §778. Transfer of cases from superior court. The judge of the supe- 
rior court may send down from the superior court of that county 
all presentments and bills of indictment for misdemeanors, to the 
city court for trial, the order transmitting to be entered on the 
minutes of both courts. 

Act | 7 J 8&4 " 5, §779. Duty of magistrates to commit to this court. It shall be the 
duty of the justices of the peace and notaries public of that county 
to bind over to the city court all persons charged with offenses com- 
mitted within the limits of the county, over which the city court 
has jurisdiction. 



ARTICLE 2. 

PROSECUTING OFFICER. 



A p ct J 7 J 884 " 5 » §780. Solicitor-general shall prosecute. The solicitor-general of the 
judicial circuit of which the county forms a part, shall prosecute for 



199 CITY COURTS. $$ 781-784 

Rules of practice. Accusation and proceeding to trial. 

all offenses cognizant before the court, but in his absence, the judgo 
shall have power to appoint a solicitor-general pro tern., who shall 
receive the same fees allowed to the solicitor-general in cases con- 
ducted by him. 

Notice of the sanction of a writ of certiorari to the superior court must be 
served upon the solicitor-general of the circuit : 90 Ga. 450. 



ARTICLE 3. 

RULES OF PRACTICE. 

8781. Rules as to motions, continuances, etc. All rules of the supe- Acts 18&4-5, 
. . . p« 4 " 8 - 

rior court relating to continuances, motions, pleas and practice, shall 

be applicable to this court. 

§782. Waivers, etc. In all cases in this court the same powers and Acts^is&^s, 

rights of parties as to waivers in pleading or procedure, or other 

matters pertaining to the same, shall be allowed as are allowed by the 

laws and rules governing parties in the superior courts. 



ARTICLE 4. 

ACCUSATION AND PROCEEDING TO TRIAL. 

§783. Accusation and warrant. Accused persons may be tried on Acts iss-i-5, 

. . . pp.476, 

a written accusation which shall set forth plainly the offense charged, 476 - 

and be signed by the prosecutor and prosecuting officer. It must be 

based on an affidavit made by the prosecutor before the judge. When 

the accusation and affidavit are filed in the clerk's office, the judge 

shall issue a warrant for the arrest of the defendant, directed to the 

sheriff of the court or his deputy and to all and singular the sheriffs 

and constables of the State. 

8784. When indictment is demanded. Before the arraignment of the Acts iss4-5, 

... p- 4,b - 

defendant, the judge shall inquire of him whether he demands an 

indictment, and the response shall be endorsed on the accusation 
and signed by the prosecuting officer. If the defendant demands an 
indictment or stands mute, the judge shall admit him to bail, in 
accordance with the general law of bail in criminal cases, for his ap- 
pearance to answer such indictment as may be found against him, 
and in default of bail, he shall commit him to the county jail to 
await the action of the grand jury in the case. If a true bill is 
found, or a special presentment is made, and the case is returned to 
the city court, all subsequent proceedings shall be in conformity 
with the laws regulating the trials of misdemeanors in the superior 
courts. 



§§ 785-787 CITY COURTS. 200 

The jury. 

AetsttM-s, B785. When indictment is waived. If the defendant waives indict- 
v ■ : - mem, the judge shall inquire of him whether he demands atrial by 
jury, and the response shall be indorsed on the accusation and 
signed by the prosecuting officer. If the defendant demands a trial 
by jury or stands mute, the judge shall proceed with the cause, if it 
be at a regular term, according to the rules and laws of the superior 
courts applicable to the trial of misdemeanors. If the defendant 
demands a trial by jury, and the court is not sitting at a regular 
term, the judge shall admit the defendant to bail to appear at the 
next regular term, and in default of bail, shall commit him to 
jail until the next regular term. If he waives trial by jury, the 
judge, in term time or in vacation, may grant a reasonable time to 
either party to procure witnesses, and shall proceed to hear and de- 
termine the case according to the law governing the superior courts 
as it may be applicable. 



ARTICLE 5. 

THE JURY. 



Act 475 884 " 5, §^86. Jury-lists, drawing, etc. The clerk of the court shall pre- 
pare and file in his office a complete copy of the traverse-jury list 
of the superior court of said county, as provided from time to time 
for such superior court. From that copy, traverse jurors shall be 
drawn in the following manner : The clerk shall write upon separate 
tickets the name of each traverse juror, and shall number the same 
and place it in a box to be prepared for that purpose, from which 
shall be drawn all traverse jurors, as now required by law in the 
superior courts. All laws with reference to the drawing of , selecting, 
and summoning traverse and tales traverse jurors in the superior 
courts, shall apply to the city court. All laws regulating the quali- 
fications, relations, impaneling, fining and challenging jurors in the 
superior courts, shall apply to and be observed in the city court, 
except when inconsistent with the provisions of this Article. 

A p ^t^ 884 " 5 ' §787. Traverse and tales jurors, and strikes. From the panel of 
twenty-four traverse jurors drawn and summoned, the judge shall 
cause to be made up two juries, which shall be known as juries num- 
bers "one" and "two," and all cases and issues to be tried by jury, 
civil or criminal, at that term of the court shall be tried by one of 
these, or by a jury stricken from both, as hereinafter provided. In 
case from any cause said panel shall be reduced below twenty-four, 
the judge shall have power to fill it by causing talesmen to be sum- 
moned instanter. In criminal cases tried at a regular term, the de- 
fendant shall be entitled to seven peremptory challenges, and the 
State five, and in all civil cases the plaintiff and defendant shall 



201 CITY COURTS. 6§788, 780 



Costs, fines, and forfeitures. New trials and writH of error. 



bo oach entitled to nix peremptory challenges, and all lawn and 
rules, both civil and criminal, regulating the selection of juries in 
the superior courts shall apply to this court, except where they are 
inconsistent with the terms of this Article. 



ARTICLE 0. 

COSTS, FINES, AND FORFEITURES. 

§788. Disposition of fines, etc. On the first Monday of each month, ^J^f 8 *"*' 
or on any day previous to each first Monday he may deem proper to 1 * 8, p :7r - 
do so, the judge shall distribute the fines and forfeitures arising 
from cases tried in the court, as follows : All bills for insolvent costs 
due the solicitor-general, the sheriff, and clerk, shall be approved 
by the judge and entered upon the minutes, and shall be a lien upon 
all the fines and forfeitures raised in the court superior to all other 
claims for insolvent costs, and when the judge distributes such fines 
and forfeitures, he shall pay the same to the solicitor-general, the 
sheriff, and clerk, pro rata on their bills for insolvent costs, for fees 
in cases in said court, and when the bills are fully paid, he shall 
order the surplus paid to the treasurer of the county, who shall 
place it to the credit of the fine and forfeiture fund of said county, 
and it shall be distributed as provided by law. If the insolvent cost 
bills of the clerk and sheriff are not fully paid when such distribu- 
tion is made, the bills shall be credited with the amount appropri- 
ated by the order of the judge, and the balance shall be paid out of 
the treasury of the county. The solicitor-general, clerk of the 
superior court, and sheriff shall share pro rata in fines and forfeitures 
arising from cases transferred from the superior court, before any 
surplus is paid into the county treasury. When a justice, or notary 
public and ex officio justice of the peace, has bound over an offender 
whose case is transferred, such officer, as to his costs, shall share 
upon the same terms with the sheriff, clerk, and solicitor-general, 
in any fine or forfeiture arising in the case : Provided, however, that 
the insolvent costs due the solicitor-general, the sheriff, and the 
clerk shall be paid only from moneys arising from fines and for- 
feitures in said court. 

This court has no more power with respect to enforcing payment of costs 
than has the superior court. Money paid, under a void order, to the clerk, 
refunded : 88 Ga. 456. 



ARTICLE 7. 

NEW TRIALS AND WRITS OF ERROR. 



§789. New trials. The judge shall have power to grant a new trial A ctsiss±-5, 
in any case, civil or criminal, in his court, upon the same terms and 



S§ 790-792 SUPERIOR COURTS. 202 



Jurisdiction of the court, and authority of the judges 



conditions and under the same laws and regulations governing the 
granting of new trials in the superior courts. All rules of pleading, 
practice and procedure governing motions, rules nisi and other pro- 
ceedings in new trials in the superior courts shall apply to this 
court. 
Actsi88fr-5, §790. Writ of error. A writ of error shall lie direct from the city 
court to the Supreme Court upon a bill of exceptions filed under 
the same rules and regulations as govern and control the issue of 
writs of error and filing of bills of exception in the superior courts* 

Note. — After this Code had been adopted by the Act of December 15th, 1895. 
and identified by the certificate of the joint committee of the General Assem- 
bly, the Supreme Court determined that these sections were unconstitutional.. 
Although invalid, the Code commissioners did not feel at liberty to withdraw 
them. 



The Superior Court — Its Officers and Juries. 



ARTICLE 1. 

jurisdiction of the court, and authority of the judges. 

Cobb, 1135. §791. (246.) Jurisdiction of superior courts. The superior courts 
have authority — 

1. To exercise original, exclusive, or concurrent jurisdiction (as the 
case may be) of all causes, both civil and criminal, granted to them 
by the Constitution and laws. 
C Art S 6"sec 2. They have exclusive jurisdiction in criminal cases where the 
4, par. i. offender is subjected to loss of life, or confinement in the peniten- 
tiary. 

Has jurisdiction of misdemeanors : 36 Ga. 87 ; 41/589 ; 53/236, 241. Criminal 
cases defined: 4 Ga. 509. Proceedings to forfeit recognizances, and against 
road commissioners, are not: 24 Ga. 420; 40/680, 689. 

Statutory provisions for two sections in counties containing a city of ten 
thousand inhabitants, constitutional: 86 Ga. 108. 

§702. (247.) Judges may grant writs of certiorari, supersedeas, hear 
motion*, etc. The judges of the superior courts have authority — 
^ 1. To grant for their respective circuits writs of certiorari, super- 
sedeas, quo warranto, mandamus, habeas corpus, and bails in actions ex 
delicto. 
Cobb, 1135. 4 To hear and determine questions arising upon writs of habeas- 
corpus or bail, when properly brought before them; all motions to- 
grant, revive, or dissolve injunctions, to give new security or lessen 
the amount of bail; and to perform any and all other acts required 
of them at chambers. 



203 SUPERIOR COURTS. §§79&-796 

SeBHions and adjournments. 

5. To administer oaths, and to exercise all other powers necessarily 

appertaining to their jurisdiction, or which may be granted them by- 
law. 



ARTICLE 2. 

SESSIONS AND ADJOURNMENTS. 

§793. (5146.) Sessions and adjournments. The superior courts shall ^JjSjJfciee. 
sit in each county not less than twice in each year, at such times as J£K t % 
have been or may be appointed by law. The judge may, in term 
time, adjourn the court to such time as he may think fit. The 
judges shall adjourn the. regular and adjourned terms at least five 
days before the commencement of the next regular term. 

When open, may be adjourned from day to day: 26 Ga. 275. 

May be held intervening week between fixed dates : 31 Ga. 411. 

That the court was illegally held was not matter of demurrer, but should 
have been set up by plea properly verified : 71 Ga. 96. 

A trial may be continued to the next week, if necessary to complete it, 
although the Monday of the next week be the time for court in another county : 
61 Ga. 183. 

Parties must take notice of the adjournments : 36 Ga. 255. 

§794. (3242.) Adjournment by clerk from day to day. In case of 00 ^ 459 * 

unavoidable accidents, whereby the superior court in any county 

shall not be held at the time appointed for holding it, the clerk 

of such court shall adjourn it from day to day, not exceeding two 

days; and unless the presiding judge shall order to the contrary 

within the two days, the clerk shall then adjourn said court to the 

next term. 

Clerk cannot adjourn from day to day unless judge's absence is caused by 
unavoidable accident : 74 Ga. 602. 

§795. (3243,3244.) Adjournment by clerk on judge's order. When Cobb, 46i. 

the clerk of the superior court is informed by the presiding judge 

that it is not possible for him to attend the regular term of said 

court, from sickness of himself or his family, or other unavoidable 

cause, which shall be expressed in the order of adjournment, the 

clerk shall adjourn the court to such time as the judge may direct, 

and shall advertise the same at the court-house of the county in 

which the court is to be held, and one or more times in a public 

gazette. No superior court shall be adjourned by the judge in 

vacation, except for the causes above stated. 

Visitation of providence, such as tornado, or sickness of wife, is unavoid- 
able cause: 74 Ga. 769. 

Judge determines the cause : 74 Ga. 769. 

Sufficient when judge approves minutes containing order signed by clerk 
under judge's direction : 74 Ga. 769 ; 50/481. 



§§ 700, 707 SUPERIOR COURTS. 204 

The clerks. 

When the courts conflict, the judge may adjourn one by order to the clerk: 
63 Ga. 791. Directory as to advertising, and may be held at the time fixed in 
the order: 34 Ga. 348. Can be adjourned in vacation only for statutory cause: 
39 Ga. 71S. 

A p% 1S<n ' §796. (3245.) Special terms for cither civil or criminal business. The 
1890-1. p. 74. judges of the superior courts may, in their discretion, hold adjourned 
terms of said courts in every county within their respective circuits, 
when the business requires it to close the dockets, and may, in the 
exercise of a sound discretion, cause new juries to be drawn for the 
same, or order the juries drawn for the regular term to give their 
attendance upon such adjourned terms; and such judges are author- 
ized to hold special terms of said courts for the trial of criminals, 
or for the disposition of civil business, either or both, in any county 
of their circuits, at discretion, and to compel the attendance of 
grand or petit jurors, either of a previous term, or to draw new jurors 
for the same, according to the laws now in force. 

When in session at an adjourned term, the court has the full power and 
jurisdiction of the court : 51 Ga. 495. And may continue as long as necessary : 
91 Ga. 136. 

Judge of another circuit may hold a special term which was called by the 
judge of the circuit : 63 Ga. 388. 

This section regulates drawing juries for adjourned and special terms: 
54 Ga. 371. How juries may be had for special terms: 70 Ga. 765. A jury 
drawn at a regular term for an adjourned term, may be held a second week: 
54 Ga. 371. 

A case continued at a regular term, may be tried at a special term: 47 Ga. 
229. Court cannot review, at a regular term, a judgment rendered at a special 
term: 61 Ga. 642. 



ARTICLE 3. 



THE CLERKS. 



Acts 1882-3, §797. (267, 4710a.) To keep dockets. It is the duty of the 
1876, pp. 99, clerks to keep a subpoena docket for criminal cases, which shall show 
the name of the person for whom subpoena issued, its date, at whose 
instance it was issued, and to whom delivered. And he shall keep a 
trial docket of criminal cases, showing the names of the parties, 
their attorneys, and the character of each case in the order in which 
they were returned to court; also a docket of criminal cases, to be 
known as the dead docket, to which cases shall be transferred, at the 
discretion of the presiding judge, and which shall only be called at 
his pleasure. When a case is thus transferred, all witnesses who may 
have been subpoenaed therein shall be released from further attend- 
ance until re-subpoenaed. 



205 SUPERIOR COURTS. ,'."--00 

Solicitors-general. 

ARTICLE 4. 

SOLICITORS-GENERAL. 

§798. (877.) Special duties. Their duties within their respective 
circuits are : 

1. To attend each session of the superior courts, regular or ad- 
journed, unless excused by the judge thereof, and remain until the 
business of the State is disposed of. 

2. To attend on the grand juries, advise them in relation to mat- 
ters of law, and swear and examine witnesses before them. 

3. To administer the oaths the laws require, to the grand and petit 
jurors, to the bailiffs, or other officers of court, and otherwise to aid 
the presiding judge in organizing the courts as he may require. 

4. To draw up all indictments or presentments, when requested by Cobb ' 574 - 
the grand jury, and to prosecute all indictable offenses. 

5. To prosecute or defend any civil action in the prosecution or 
defense of which the State is interested, unless otherwise specially 
provided for. 

6. To represent the State in all cases in the superior courts of his^J^k'sec. 
circuit, and in all cases taken up from his circuit to the Supreme n ' par - 2 - 
Court, and to perform such other services as shall be required of him 

by law. 

7. To collect all moneys arising from fines and forfeited recogni- Cobb ' 1027 * 
zances, all costs on criminal cases when paid into court before judg- 
ment, and not otherwise; and at the fall term of each court, every 

year, to settle with the county treasurer, and pay over to him all 
moneys due him according to law, after a fair and full settlement. 

8. To settle at the same time with the preceding solicitor, and pay. 
over to him any moneys collected to which he may be entitled, and 
to render to him, whenever required by him, a just statement of the 
condition of his interests. 

11. To perform such other duties as are or may be required by 

law, or which necessarily appertain to their office. 

See Acts of 1882-3, p. 98, for his duty as to cases transferred to United States 
Court. 

§799. (378.) May be ruled as attorneys at law. If a solicitor-general 
fails to comply with the provisions of the preceding section, he is 
liable to rule as attorneys at law are, with all the penalties and reme- 
dies; and on failure to comply with the terms of a rule absolute, 
within twenty days from the time it becomes final, it shall be a 
ground of impeachment. 

§800. (379.) Failure to attend on courts. If he fails to attend on 
the courts of his circuit as required, he is. liable to be fined for each 
failure fifty dollars, to be retained out of his salary. 



§§ S01-807 SUPERIOR COURTS. 206 

Solicitors-general. 

§801. (880.) May nolle pros, indictments. He has authority, on the 
terms prescribed by law, to enter a nolle prosequi on indictments. 

§802. (381.) How proceeded against for exacting illegal costs. If the 
grand jury present the solicitor for having received more than his 
lawful costs, he shall be disqualified from further discharging his 
official duties, until a trial shall be had upon an indictment, and if 
the trial results in a conviction, he shall be fined and imprisoned at 
the discretion of the court; and it is also a ground of impeachment. 
The disqualification continues until the adjournment of the next 
session of the General Assembly. 

§803. (382.) Clerk to notify the Governor. It shall be the duty of 
the clerk of said court to certify immediately such proceedings to the 
Governor. 

'p Ct 29 1876 ' §804. (383.) Taking money, etc., to influence grand jury. If they 
take or agree to take, from any person, money or any other valu- 
able thing, the consideration whereof is a promise or undertaking to 
procure, or to try to procure, a finding by the grand jury of "a bill" 
or "no bill" upon an indictment, or to make or not to make a pre- 
sentment, or to prolong or procrastinate a State case, or an arrest, or 
to advise it done, or how it may be done, the penalty and the pro- 
ceedings are the same as in the two preceding sections. 

Cobb, 674. §805. (384.) When the court may supply his place. When a solicitor 
is absent, or indisposed, or disqualified from interest or relationship 
to engage in a prosecution, the presiding judge must appoint a com- 
petent attorney of the circuit to act in his place, or he may command 
the services of the solicitor of any other circuit accessible, or he may 
make a requisition on the Governor for the attorney-general, as the 
emergency in his discretion may require. 

When solicitor-general is prevented by sickness or other malady, bodily or 
mental, court may appoint: 22 Ga. 212; 90/451. Discretion of judge: 
41 Ga. 507. 

§806. (385.) Attorney acting as solicitor, entitled to same fees. An 
attorney, acting as such solicitor, is subject to all the laws governing 
solicitors-general; he is entitled to the same fees for what he does, and 
incurs the same penalties in the discharge of his duties. 

§807. (386.) Proceedings when solicitor is prosecuted. When any 
person makes affidavit before the court or grand jury, that in his 
judgment the solicitor-general is guilty of an indictable offense, and 
that he desires to prosecute him, or the grand jury may present him 
for such an offense, it is the duty of the court instanter to appoint 
some competent attorney at law to draw a bill of indictment, and 
when there is a true bill found, or presentment made, to put the 
solicitor under recognizance or in prison, according to the offense, 
until the appearance of the proper prosecuting officer. 



207 SUPERIOR COURTS. 308-811 

Special criminal bailiffs. Stenographic reporter. The grand jury. 

ARTICLE 5. 

SPECIAL CRIMINAL BAILIFFS. 

8808. Appointment and removal. In each county having more than ^J 51 ^* " 1, 
twenty thousand inhabitants, the solicitor-general of the superior, 
city and county courts shall each be entitled to a special criminal 
bailiff, to be appointed by such solicitor-general with the approval 
of the judge of the court, and to be subject to removal by such judge 
and solicitor-general for misconduct in office, or other sufficient 
cause, to be judged of by them. 

§809. Duties. Such special criminal bailiffs shall prepare all crim- A p ct J 2 3 8&0 " 1, 
inal business pending in the courts for which they were appointed 
respectively, for trial, by arresting defendants, summoning witnesses, 
and serving attachments on witnesses, and performing such other 
duties, in connection with the criminal business of the courts in 
which they are serving, as may be directed by the presiding judges 
and solicitors-general of said courts. 



ARTICLE 6. 

STENOGRAPHIC REPORTER. 

§810. (4696a.) Reporters. The judges of the superior courts Act ^ 876 - 
shall have power to appoint, and at pleasure remove, a reporter or 
stenographic reporter for the courts of their respective circuits. 
Such reporter, before entering on the duties of his office, shall be 
duly sworn, in open court, faithfully to perform all the duties re- 
quired of him by law; and it shall be his duty to attend all courts 
in the circuit for which he is appointed, and, when directed by the 
judge, to exactly and truly record, or take stenographic notes of the 
testimony and proceedings in the case tried, except the arguments 
of counsel. 



ARTICLE 7. 

THE GRAND JURY. 

§811. (3906.) Qualification of grand jurors. All male citizens of^JfVsec 
this State, above the age of twenty-one years, being neither idiots, ^•, p ^f' 
lunatics, nor insane, who have resided in the county for six months p- 53 - 
preceding the time of serving, and who are the most experienced, 
intelligent and upright persons, as hereinafter provided, are qualified 
and liable to serve as grand jurors, unless exempted by law: Pro- 
vided, however, that county commissioners, tax-receivers, tax-collec- 
tors, members of the county board of education, county school 



|§812-315 SUPERIOR COURTS. 208 

The grand jury. 

commissioners, ordinaries, and county treasurers, shall be incompe- 
tent to serve as grand jurors during their respective terms of office. 

The qualification was not changed by the Constitution of 1877 until legisla- 
tion was had thereunder: 62 Ga. 368. 

The commissioners are the proper judges of the qualification of citizerffe to 
be placed on the jury lists: 67 Ga. 460. 

The law makes no discrimination on account of race, color, or previous con- 
dition: 69 Ga. 225. 

One over sixty is qualified and competent to serve — the exemption is a 
privilege : 75 Ga. 258, 747 ; 76/551. 

That grand jurors who found the indictment had served on the coroner's 
jury, not good in abatement, nor for new trial: 66 Ga. 508; 69/12, 705. 

\ct?is69.' §812. (3914.) Number of grand jurors. A grand jury shall consist 
p. no. f no j-, i ess than eighteen nor more than twenty-three persons. 

A p Ct 'V 87S9 ' §813. (3910a.) Jury commissioners. There shall be a board of 

is87. p. 52. jury commissioners, composed of six discreet persons, who are not 

(\ , Q^TViso* .' practicing attorneys at law nor county officers, who shall hold their 

'//*/- % appointment for six years, and who shall be appointed by the judge 

/ - of the superior court. On the first appointment two shall be ap- 

/^a^-**-*-*** pointed for two years, two for four years, and two for six years, and 

' C / - r *&. their successors shall be appointed for six years. 

The commissioners hold over until their successors are appointed : 74 Ga. 812. 
County school commissioner not incompetent : 71 Ga. 279. 
Commissioners de facto: 64 Ga. 375. 

'p^ioi 882 ' 8 ' §814- (3910b.) Oath and duty of commissioners. Jury commis- 
sioners, before entering on the discharge of their duties, shall take 
and subscribe, before the ordinary of their respective counties, the 
following oath (which shall be entered on the minutes of the court 
of ordinary), viz.: "You shall faithfully and impartially discharge 
the duty of jury commissioners for the county of , in accord- 
ance with the Constitution of this State, to the best of your skill 
and knowledge; and the deliberations and counsel of the jury com- 
missioners, while in the discharge of their duties, you shall forever 
keep secret and inviolate, unless called upon to give evidence thereof 
in some court of justice or other legal tribunal of this State. So help 
you God." 

^SoS^k §815. (3910 b.) When revision shall be m.ade. Biennially, on the 
first Monday in August, or within thirty days thereafter, they shall 

• '/>>? D revise the jury-lists, as provided in this Article, except that in those 
counties within whose limits there is an incorporated town of ten 
thousand or more inhabitants, the revision shall be made annually. 
In determining the number of inhabitants of any town, the last 
preceding census of the United States shall be taken as evidence of 
the number of inhabitants. 



f 



209 SUPERIOR OOL'RTS. 16^820 



The grand jury. 



§810. (8010c.) Clerk of the board. The clerk of the superior 
court shall be the clerk of the board of commissioners, and shall per- 
form all the clerical duties required by Law. Before entering \\\><>n the 

performance of his duties as clerk of said board he shall take an oath, 
before the ordinary, to faithfully discharge his duties, as required 
by law, and that he will never divulge any of the proceedings and 
deliberations of the jury commissioners, unless compelled to testify 

thereof in some court in this State. 

§817. (3911a.) Judge may order revision, when. On failure of-' 1 
the commissioners of any county to revise the jury-list as provided 
in this Article, the judge of the superior court of such county, 
either in term time or at chambers, shall order the revision made at 
such time as he may direct. 

§818. (3910 d.) Grand and traverse juries, hoiv selected. The jury -\''. , ~. 1 : > " 
commissioners shall revise the jury-list, and shall select from the lv '-'- p 
books of the tax-receiver upright and intelligent men to serve as 
jurors, and shall write the names of the persons so selected on tick- 
ets, as required by law. They shall select from these a sufficient 
number, not exceeding two-fifths of the whole number, of the most 
experienced, intelligent and upright men, to serve as grand jurors, 
whose names they shall write upon other tickets. The entire num- 
ber first selected, including those afterwards selected as grand jurors, 
shall constitute the body of traverse jurors for the county, to be 
drawn for service as now provided by law, except that when in draw- 
ing juries a name shall be drawn as a traverse juror which has 
already been drawn for the same term as a grand juror, such name 
shall be returned to the box and another drawn in its stead. 

§819. (3910 e.) Jury-boxes, how made up. The jury commis- Ac ^ 1 7 S7 |^ 9> 
sioners shall place the tickets containing the names of grand jurors 
in a box to be provided at the public expense, which box shall contain 
apartments marked number "one" and "two," from which grand 
jurors shall be drawn as provided by law, and the jury commissioners 
shall place the tickets containing the names of traverse jurors in a 
separate box, to wit, the jury-box now in use, or other similar box, 
from which traverse jurors shall be drawn, as provided by law. 

The laws regulating the selection, drawing and summoning of jurors are no 
part of a regulation to secure to parties impartial jurors: 85 Ga. 88; 20/60. 

When the law is substantially complied with, proceedings should not be set 
aside on mere technicalities : 74 Ga. 812. 

§820. (3910 f.) Book lists to be made. The clerk of the superior Acts 1 l s: .^- 

u > ' x pp. _i . o4. 

court shall make out, in a book, lists of the names respectively con- lsSi> - p- -• 
tained in the grand-jury box and in the traverse-jury box, alphabeti- 
cally arranged, and place the book in his office, after the lists therein 
have been certified by the clerk and commissioners to contain, re- 
spectively, all the names placed in the jury-boxes. 
14 



g§821-828 SUPERIOR COURTS. 210 

The grand jury. 

Clerk not required to sign certificate: 76 Ga. 592. 

Mere irregularities, and that ministerial duties were not correctly per- 
formed, were not sufficient grounds for quashing an accusation: 81 Ga. 708; 
62 368 : 50/463 : 54/375. 

3U784, §821, (3910 g.) How juries shall be drawn when judge fails to draw. 
Whenever the presiding judge of the superior court shall fail to 
draw juries at any regular term of the court, the jury commis- 
sioners may draw traverse jurors at the same time, and in the same 
manner as grand jurors are drawn in such cases. 

Aot ^ 4 J sw - §822. (3911.) How drawn. The judges of the superior courts, at 
U74, p. 90. t ] ie close of each term, in open court, shall unlock the box, and 
break the seal, and cause to be drawn from apartment number "one," 
not less than eighteen, nor more than thirty names to serve as grand 
jurors at the next term of the court; all of which names shall be 
deposited in apartment number "two;" and when all the names shall 
have been drawn out of apartment number "one," then the drawing 
shall commence from apartment number "two," and the tickets be 
returned to number "one," and so on alternately; and no name, so 
deposited in the box, shall, on any pretense whatever, be thrown out 
of it. or destroyed, except when it is satisfactorily shown to the judge 
that the juror is dead, removed out of the county, or otherwise dis- 
qualified by law. 

The provision as to the number is directory, not mandatory : 78 Ga. 175 ; 
69/68; 90/372. 

It is a good special plea, if made on arraignment, that one of the grand jurors 
was an alien : 53 Ga. 73 ; 90/372. If a defendant can except to a grand juror at 
all, for favor, it should be done before the true bill is found, at least if he has 
had an opportunity to make the question by challenge before the finding of the 
indictment: 66 Ga. 508; 69/12,705; 78/174; 90/347; 93/310; 62/179. 

Mistakes in spelling or writing their names may be corrected, and idem sonans 
not an infallible test : 18 Ga. 738 ; 38/184. It is a question of identity of person, 
not of name : 78 Ga. 175 ; 58/35. 

Objection that they were illegally drawn, should be made by plea in abate- 
ment: 9Ga. 59; 57/427; 69/73. 

If qualified when drawn, they may serve, although left out when the list is 
revised: 72 Ga. 180. Or when the law was changed : 42 Ga. 9. That the juror's 
name is on the minutes as properly drawn, is a reply to the exception that his 
name was not in the box : 64 Ga. 443. 

Vwo 869, §823. (3912.) Hov) drawn in vacation. Whenever from any cause 
the judge shall fail to draw a jury as provided in the preceding sec- 
tion, the ordinary of the county in which such failure may have 
occurred, together with the commissioners and clerk of the county, 
shall meet at the court-house at least twenty days previous to the 
next ensuing term of the court, whether such term be a regular or 
adjourned term, and then and there draw grand jurors to serve at 
that term; all of which shall be duly entered by the clerk on the 
minutes of the court, and signed by the ordinary. 



211 SUPERIOR COURTS. 54-828 

The grand jury. 

The presence of the ordinary is not essential ; a majority of the comn. 
sioners being present and acting: 74 Ga. 812; 90/138. 

§824. (3913.) How summoned. Within thirty dayg after fche^J? 
jurors shall have been drawn by a judge of the superior court, and 
within five days after they may have been drawn by the ordinary 
and commissioners as provided in the preceding section, the clerk of 
the superior court shall issue and deliver to the sheriff or his dep- 
uty, a precept containing the names of the persons drawn as grand 
jurors; and upon the receipt of the precept, the sheriff or his deputy 
shall cause the persons whose names are therein written to be served 
personally, or by leaving the summons at their most notorious places 
of residence, at least ten days prior to the term of the court the 
jurors were drawn to attend. 

That the jury was summoned without a venire, not good in arrest of judg- 
ment: 14 Ga. 43. In the absence of anything to the contrary, service of the 
precept will be presumed, when the clerk hands the list to the sheriff: 69 Ga. 
12. 

§825. (3915.) Oath of the grand jury. The following oath shall be c^- 551 - 
administered to the foreman of all grand juries, viz.: "You, as fore- 
man of the grand jury for the county of , shall diligently 

inquire and true presentments make of all such matters and things 
as shall be given you in charge, or shall come to your knowledge, 
touching the present service; the State's counsel, your fellows', and 
your own, you shall keep secret, unless called upon to give evidence 
thereof in some court of law in this State; you shall present no one 
from envy, hatred, or malice, nor shall you leave any one unpresented 
from fear, favor, affection, reward, or the hope thereof , but you shall 
present all things truly, and as they come to your knowledge. So 
help you God." And the same oath thus taken by the foreman shall 
be taken by each and every member of all grand juries. 

A special plea that the grand jury were not sworn should be determined 
from the minutes : 53 Ga. 602. 

§826. (3797.) Confidential communications. Admissions and com- 
munications among grand jurors, are excluded as evidence from 
public policy. 

§827. (3799.) When grand jurors may disclose. Grand jurors shall Cobb - 27T - 
disclose everything which occurs in their service whenever it becomes 
necessary, in any court of record in this State. 

Cannot be sworn to impeach their rinding, but may be examined in support 
of it: 60 Ga. 145; 57/107. 

§828. (3916.) Oath of bailiff to the grand jury. The following oath °*J b - »- 
shall be administered to all bailiffs attending grand juries, to wit: 
"You do solemnly swear that you will diligently attend the grand 
jury during the present term, and carefully deliver to that body all 
such bills of indictment, or other things, as shall be sent to them 



§§ 829-882 SUPERIOR COURTS. 212 

Tho grand jury. 

by the court, without alteration, and as carefully return all such as 
shall be sent by that body to the court. So help you God." 

The bailiff may return an indictment into court: 75 Ga, 620; 74/870; 81/483. 
Eur not the solicitor-general; and if no entry is made of the return, at the 
term, there is no presumption that it was made: 81 Ga. 482. 

*mo!*' § 829, ( 8914 Duty of grand jurors. The duties of a grand jury 
shall be confined to such matters and things as by the laws and stat- 
utes of this State they are required to perform. 

While each member is under obligation to make diligent inquiry, and to 
present truly all infractions of the criminal law which may be given the body 
in charge, or may come to the knowledge of any of them touching the service 
in which they are engaged ; and while their powers are to a certain extent 
inquisitorial, they have to be exercised within well defined limits. They can 
find no bill nor make any presentment, except upon the testimony of witnesses 
sworn in a particular case, where the party is charged with a specified offense ; 
nor can they subpoena a witness to testify before them as to his general knowl- 
edge of violations of the penal laws, when the fact to be investigated has not 
been discovered by the grand jury or any member thereof, and when that 
body knows nothing of any person connected with or guilty of the offense : 
77 Ga. 144. 

"When the solicitor may make search for evidence and have subpoenas served : 
77 Ga. 144. 

Cobb, 553. §830. (3917.) When bound to notice offenses. Whilst grand jurors 
are bound only to notice or make presentments of such offenses as 
mayor shall come to their knowledge or observation after they 
shall have been sworn, yet they have the right and power, and it is 
their duty, as jurors, to make presentments of any violations of the 
laws which they may know to have been committed at any previous 
time, which are not barred by the statute of limitations. 

It is their duty to present for malpractice in office : 54 Ga. 654. 

A p Ct io£ S5 "' §831. (3918.) Foreman may swear witnesses. The foreman of each 
grand jury may administer the oath prescribed by law to all wit- 
nesses required to testify before such grand jury, and may also 
examine such witnesses. 

Not a good plea that the witnesses were not sworn by, or before, the court: 
50 Ga. 585; 75/621. 



AetsUK-e, §832. (3943.) The grand jury may recommend an extra tax. Upon 
JS' > io2 tne re commendation of the grand jury, the ordinaries of the several 
counties in this State may assess and raise a tax for the compensa- 
tion of grand and petit jurors — the jury and confession fees paid 
into the county treasury being, in such case, a part of the fund for 
that purpose; and when such tax is raised, the clerk of the superior 
court shall issue to the jurors, whose compensation is thus provided 
for, a certificate, which shall be a warrant on the county treasury for 
the amount of the money due such juror, according to the per diem 
pay fixed by the ordinary, and the county treasurer shall pay the 



213 SUPERIOR COURTS. 88-8W 



The grand Jury. 



same out of the fund so raised by taxation, and the tax-collector 
shall collect the tax and pay it- over as county tax. 

§833. (923b.) Inspection of tax-receiver's boohs. The tax-receiver ActyM74, 

in each county, at each fall term of the superior court in his county, 
shall lay before the grand jury his returns for that year of taxable 

property, and the grand jury shall overlook the same, and wherever 
they find an undervaluation, they shall correctly assess it according 
to the market valuation of the property, and deliver to the receiver 
his returns with the correction. 

§884. (4052.) Oath of witnesses before grand jury. The following Ck>tt>,«. 
oath shall be administered to witnesses intended to be sent before 
the grand jury : " The evidence you shall give the grand jury on this 
bill of indictment (or presentment, as the case may be — here state 
the case), shall be the truth, the whole truth, and nothing but the 
truth. So help you God." 

If the oath be materially different from this, the indictment should be 
•quashed : 15 Ga. 246 ; 77/147. 

A plea alleged that the witnesses were not sworn in open court and did not 
take the proper oath. It did not name the witnesses, nor show what oath 
was taken, and was bad : 53 Ga. 73 ; 50/585. 

§835. (3919.) Mistake of tax-receiver. Whenever it shall satisfac- 
torily appear to the grand jury of any county, that the receiver of 
tax returns has committed an error in making an entry in his digest, 
•of either quantity or quality of property returned in such digest, or 
in the amount of taxes assessed, such grand jury inay recommend 
the ordinary of their county and the comptroller-general of the 
State to cause such error (particularly specifying the same) to be 
corrected. 

§836. (3920,1263 a.) Duties in relation to county affairs. In addition Cobb.195. 

5 x , ' J m J •" t , Acts 1877, 

to the duties of the grand jury as indicated in the oath administered p- ue. 
to them, and as required by law, it shall be their special duty, from 
term to term of the superior court, to inspect and examine the 
offices, papers, books and records of the clerks of the superior courts 
and ordinary, and also the books, papers, records, accounts and 
vouchers of the county treasurer, and cause any such clerk or county 
treasurer who shall have failed or neglected to do his dutv as re- 
quired by law, to be presented for non-performance of official duty. 
And in making up their general presentments, they shall take proper 
notice of the matters brought to their attention by the report and 
books of the county school commissioners. 

§837. (3921.) Appointing citizens to examine records, etc. The A P^ sra « 
grand jury may, when they deem it necessary, appoint any one or iwo-i,p.TO. 
more citizens of the county, to inspect and examine, during vacation, 
the offices, papers, books, records, accounts and vouchers of the 
court of ordinary for county purposes, clerk of the superior court, 



|§838-842 SUPERIOR COURTS. 214 

The grand jury. 

county treasurer, tax-collector, tax-receiver, county school commis- 
sion. >r. sheriff, and all other county officers; and if any of said officers 
be the custodians of county funds by virtue of their office, or have 
in their possession funds belonging to the county, they shall exhibit 
them to said committee, and it shall be the duty of the committee 
to count the same, and to make a full and complete report of the 
finances, disbursements and conditions of the several offices to the 
grand jury at the succeeding term of the superior court ; and should 
any of said officers fail or refuse to exhibit to the committee the 
funds on hand or claimed by them to be on hand, upon notice of 
that fact to the judge of the superior court by the committee, it 
shall be his duty to compel the delivery of the funds to the com- 
mittee for the purpose of counting the same, by mandamus or 
attachment. 

Act |^ :2 - £ s 38. (3922.) Powers of appointees. The person or persons so ap- 
pointed to inspect and examine, shall have power to take full control 
of the offices, papers, books, records, accounts and vouchers of the 
several different offices, to compel the attendance of witnesses, hear 
evidence in regard to fraud, and the non-performance of official duty, 
and the improper disbursement of the county funds. 

Act ;, 3 1S72 ' §839. (3923.) Production of books, etc. If any of such officers refuses 
to produce the papers, books, records, accounts and vouchers, it shall 
be the duty of the judge of the superior court of the county, upon 
evidence being adduced, to enforce the provisions of this and the two 
sections that precede it, by mandamus or attachment, as the case may 
require. 

Act i. J 2 887 ' §840. hispection of county jails. Grand juries shall carefully inspect 
the sanitary condition of the jails of their respective counties, at 
each regular term of the superior court, and shall make such recom- 
mendations to the ordinaries in their general presentments as may 
be necessary to provide for the proper heating and ventilation of 
such jails, which recommendations the ordinaries shall strictly en- 
force. Said juries shall also make such presentments as to general 
sanitary condition of the jails and the treatment of the inmates, as- 
the facts may justify. 

§841. (504.) Grand jury to inspect public buildings, etc. It is the 
duty of the grand jury to inspect all the public buildings and other 
property of the county, and the county records, and to report, in their 
general presentments, their condition, and if they report that the 
ordinary has failed to comply with the law touching the same, it is 
the duty of the solicitor-general of the circuit to commence proceed- 
ings against him, that he may be compelled so to do, if he does not 
in good faith comply by the next term of the superior court. 

§842. (4709.) Exhibit from solicitor and clerk. Upon application 
of the ordinary, the grand jury may, at any term, require an exhibit 



215 SUPERIOR OOCRTS. 18-846 

Thfr grand jury. 

from the solicitor-general and clerk, showing the- disposition of all 
money arising from fines, and the present state of their accounts. 

§843. (1290.) Grand jury to examine lists and ballots. The grand 
jury shall examine the lists of voters, and if any voter 18 found 
thereon who was not entitled to vote, they shall present him. If any 
person is suspected of voting for members of the General Assembly 
who was not entitled, but was entitled to vote for some other candi- 
date at the same election, the foreman of the grand jury may examine 
the ballot, and that one alone, and lay it before the grand jury, and 
return it. If the superintendents fail to return, as required, the lists 
and the ballots, they must be presented. 

§844. Duty of officer and grand jury when execution of sentence is A £ V e / } b ' J0 ' 
obstructed. Whenever any person shall hinder, obstruct, or interfere 
with the sheriff or other officer, as prohibited in section 307 of this 
Code, the officer so interfered with shall make out a list of the per- 
sons so offending and present them to the grand jury of the county 
having jurisdiction, at the next term of the superior court thereof, 
together with all information necessary to acquaint the grand jury 
with the details of the transaction. Any sheriff or constable who 
shall fail to comply with the duty hereby imposed, may be suspended 
and his office be declared vacant by the Governor, whenever it shall 
appear from the presentments of the grand jury that the offense 
defined in said section has been committed in the county and no 
report thereof made by the sheriff or constable, as the case may be; 
and it shall be the duty of the grand juries in all counties to inves- 
tigate the facts and make presentment of the matter and things 
herein referred to, in all cases where lawless conduct has so hindered 
or interfered with the order or sentence of any court in the county, 
and the clerk of court shall immediately transmit a copy of such 
presentments to the Governor. 

§845. Examination of pension rolls. The Governor, acting through Act | ( ^ 890 " 1 ' 
the clerk in charge of the pensions, shall transmit to the clerk of the 
superior court of each county, on or before January first of each year, 
a complete list of all the soldiers and widows of soldiers residing in 
his county, as their names appear upon the pension rolls of the State, 
and the clerk shall deliver the list to the first grand jury that shall 
meet after it has been received by hirn. The grand jury shall inspect 
and examine it, and report the same in their general presentment, 
stating whether in their opinion all the persons whose names appear 
upon it are entitled to receive pensions, and giving the names of such 
persons whose claims to pensions are, in the opinion of the grand 
jury, of a doubtful character. In making the examination the grand 
jury shall have power to subpoena witnesses and examine them touch- 
ing the validity of said claims for pensions, and the clerk of the 
court shall promptly transmit to the Governor an exact copy of that 



§846 SUPERIOR COURTS. 216 

The grand jury. 

portion of the presentments of the grand jury which refers to pen- 
sions, and the Governor shall cause additional proofs or evidence to 
be given in all claims which are reported as doubtful or illegal by 
the grand jury, and unless the claim is supported by satisfactory 
proof, the same shall be disallowed and the name stricken from the 
pension roll. 

To examine returns of county officers, inspect books of registry of liquor 
dealers, inspect and report upon execution dockets and cash books of tax-col- 
lectors as required by the Civil Code, and to inquire into violations of §468 of 
this Code. 

§846 (3249.) Special cliargcs to the grand jury. The judge of the 
superior court shall, at each term of said court, in every year, give 
specially in charge to the grand jury the law as to : 

Gaming, sections 398, 399, 400, 444, 401, 402, and 403. 

Forestalling, regrating, and engrossing, section 662. 

Carrying deadly weapons, section 341. 
s 1871-2, Selling liquor to drunken persons, section 443. 

Selling liquor within three miles of a church, sections 434, 435. 
- !'•'•" • Vending near camp grounds, section 426. 
-""--■" Interfering with religious worship, section 418. 

Requiring railroads to furnish water and light on trains, sections 
522-524. 

Duty of clerks to record papers, section 4360 of the Civil Code. 

Requiring officers to make inventories of public property, sec- 
tions 275-280 of the Civil Code, 

Requiring tax-collector to lay before the grand jury returns of 
special taxes collected, section 951 of the Civil Code. 
] "-- Inspection of jails, section 840. 

Obstructing officers in executing sentence, sections 307, 844. 

Requiring grand jurors to examine pension rolls, section 845. 

Ai each fall term he shall charge as to : 

Requiring grand jurors to fix the pay of jurors and court-bailiffs 
►-1.P- 80 ' in i)](. superior courts and jurors in the city courts, section 872. 

Requiring tax-receivers to lay their returns before the grand jury, 
- ctions 9% and 936 of the Civil Code. 

When necessary, he shall call the attention of the grand jury to 
the du lies required of ordinaries in sections 342-348, 351-355,358- 
372, 395, and 396 of the Civil Code, and to violations of sections 
24*. 249, as to issuing unauthorized currency. 

And in counties where such institutions are located, he shall charge 
the law as to : 

[sailing unlawful diplomas by medical colleges, sections 485, 
186 : and 
1892, p. no. Protection of inmates of private insane asylums, sections 559, 
560 : and sections 1452, 1453, and 1455 of the Civil Code. 



217 SUPERIOR COURTS. 



Special juries. The petit jury. 



And in each county where convict camps are Located, he shall al '',;' ] 'l; ) 
each term charge all Laws relating to : 

Inspection, management and control of convicts, sections L151- 
1186. 

§847. Publication of grand jury presentments. Grand juries are ■';["'■ 
authorized to recommend to the court the publication of the whole 
or any part of their general presentments, and to prescribe the man- 
ner of such publication; and when such recommendation is made, 
the judge shall order the publication as recommended, reasonable 
charges therefor to be paid out of the county treasury, upon the 
certificate of the judge, as other court expenses are now paid. 



ARTICLE 8. 



SPECIAL JURIES. 



§848. (3925,3926.) How special juries may be selected. All special A p ct | 3 ls ^" 5 ' 
juries provided for by law, may, in the discretion of the judge, be 
selected from either the grand or traverse jury, or both, and shall be 
stricken in the presence of the court in the following manner : The 
clerk shall furnish a list of the grand jurors present and then im- 
paneled, from which the parties or their attorneys may strike out 
one alternately, until there s^iall be but twelve left, who shall be 
forthwith impaneled and sworn as special jurors; in cases of ap- 
peal by consent, the plaintiff shall strike first, and in all other cases 
the appellant shall strike first, and should either party fail or refuse 
to strike such special jury after being notified or required so to do, 
the presiding judge shall, in behalf of the party so failing or refus- 
ing to strike, proceed in the same way and manner as if the party 
failing or refusing were striking said special jury in person or con- 
senting to the same. 

§849. (3927. ) Oath of special jurors. The oath prescribed for petit Cobb - 55L 
jurors shall be the oath of special jurors. 



ARTICLE 9. 



THE PETIT JURY 



§850. (5174.) Trial by jury. The right of trial by jury, except ^SlVeec 
where it is otherwise provided in this Constitution, shall remain in- i8,par.i. 
violate, but the General Assembly may prescribe any number, not 
less than five, to constitute a trial or traverse jury in courts other 
than the superior or city courts. 



§§851-855 SUPERIOR COURTS. 218 

The petit jury. 

The words "trial by jury," as heretofore used in this State, mean nothing 
more than trial by jury in its essential elements as contradistinguished from 
other modes of trial: 19 Ga. 614. 

In the city court: 62 Ga. 395; 66/110; 81/615; 72/318. 

( Art!ft'sec §851- (5175.) Qualification. The General Assembly shall provide 
18, par. 2. by i aw f or j- ne selection of the most experienced, intelligent and up- 
right men to serve as grand jurors, and intelligent and upright men 
to serve as traverse jurors. Nevertheless, the grand jurors shall be 
competent to serve as traverse jurors. 

Persons on the grand jury list are competent to serve as petit jurors : 71 Ga. 
283. 

A p C % 1S7S ^ §852. (3931.) How selected , drawn and summoned. Petit juries are 
pp'isa selected and their names placed in a box, as provided in sections 818 
140 • and 819; and at the same time, and in the same manner that grand 

juries are drawn, the judge shall draw out of the same apartment of 
the jury-box thirty-six names to serve as petit jurors for the trial of 
civil and criminal cases; and such petit jurors are summoned in the 
same manner as is provided in this Code for summoning grand jurors. 

Act ^ S69, §853. (3932.) Panels, how made. The judges of the superior courts, 
at each term, shall, from the petit jurors, have made up two panels 
of twelve jurors each, which shall be known and distinguished as 
panels "number one" and "number two"; all cases in said courts 
shall be tried by one or the other of said panels, if the parties can 
agree upon a panel. If the parties cannot agree upon a panel, the 
clerk shall furnish the parties or their attorneys a list of both panels, 
from which the parties or their attorneys may strike alternately 
until there shall be but twelve left, which shall constitute the jury 
to try the case. In all cases the plaintiff shall have the first strike. 

A p Ct i45 878 " 9 ' §854. (3932.) Parties entitled to full panels. In civil cases and cases 
of misdemeanors in the superior court, each party may demand a 
full panel of twenty-four competent and impartial jurors from which 
to strike a jury, and when one or more of the regular panel of trav- 
erse jurors is absent, or for any reason disqualified, the presiding 
judge, at the request of counsel for either party, shall cause the 
panel to be rilled by tales jurors to the number of twenty-four, before 
requiring the parties, or their counsel, to strike a jury. 

§855. Challenge for favor. In a civil cause it is good cause of chal- 
lenge that a juror has expressed an opinion as to which party ought 
to prevail, or that he has a wish or desire as to which should 
succeed. 

The course pursued was to put each juror on his voir dire. The questions 
asked by the court were: Have you formed and expressed an opinion as to 
which party ought to prevail in the cause? Have you any wish or desire as to 
which party ought to succeed in the cause? 15 Ga. 41; 59/149; 7/139; 63/686; 

75/848. 



219 SUPERIOR COURTS. 556-866 

The j)f:tit jury. 

§856. (3988, 8927.) Oath of petit jwors. Each panel of the petal )*■£* 

jury shall take the following oath : " You shall well and truly try 
each cause submitted to you during the present term, and a t rue ver- 
dict give, according to the law as given you in charge-, and the opin- 
ion you entertain of the evidence produced to you, to the best of 
your skill and knowledge, without favor or affection to eil her party, 
provided you are not discharged from the consideration of* the case 
submitted. So help you God." 

§857. (3934,4644.) Juries to try misdemeanors. For the trial oij^wS', 
misdemeanors, the solicitor and the accused may select either panel p - 14L 
of the petit jury. If they cannot agree upon a panel, the court shall 
have a panel made up of the twenty-four petit jurors in attendance, 
of which the accused shall have the right to challenge seven peremp- 
torily, and the State five, The remaining twelve shall constitute 
the jury. 

The practice of striking a jury in petty offenses is well settled as an equiva- 
lent for challenging: 29 Ga. 36. 

The strikers should alternate — defendant beginning and ending the strikes : 
19 Ga. 425. 

When the jury have been selected, and some of them sworn, and one of the 
others is excused for sickness, the court may have the panel refilled and the 
list again stricken over: 29 Ga. 681. 

When, after the jury was stricken, and before the cause was submitted, de- 
fendant discovered that two of the jurors had been on the grand jury, he was 
entitled to a new list and a strike from it : 45 Ga. 11. 

If a juror fails to answer after the jury is stricken, but before the jurors 
were sworn or the case submitted, a new panel should be ordered : 53 Ga. 241. 

The legislature may provide for juries composed of a less number than 
twelve, in county courts and other inferior tribunals: 51 Ga. 264. 

Where two were tried together for an affray, they had one common interest 
and were entitled only to seven strikes : 13 Ga. 324 ; 59/88. 

No right in misdemeanors to examine juror upon his voir dire, without first 
challenging him and assigning cause : 92 Ga. 459. 

§858. (3935.) Jury to try felonies. When any person shall stand Actaises. 
indicted for a felony, the court shall have impaneled forty-eight JjgJJP- 4 * 
jurors, twenty-four of whom shall be taken from the two panels of p- 12 °- 
petit jurors, from which to select the jury. If the jury cannot be 
made up of said panel of forty-eight, the court shall continue to 
furnish panels, consisting of such number of jurors as the court, in 
its discretion, may think proper, until a jury is obtained. In mak- 
ing up said panel of forty-eight jurors, or successive panels of any 
number, the presiding judge may draw the tales jurors from the 
jury-boxes of the county and order the sheriff to summon them, or he 
may order the sheriff to summon tales jurors from among persons 
qualified by law to serve as jurors. 

Cited : 62 Ga. 732. 



|§859-861 SUPERIOR COURTS. 220 

The petit jury. 

It is in the discretion of the court to determine the number of which the 
panels of tales jurors shall consist: 17 Ga. 498. 

Talesmen properly drawn from the grand-jury box: 85 Ga. 71. 

A p Ct 4" 1ST1 " §859. (8985.) Judges men/ make up panels, if regular panels cannot 
i§88. p. us. ( h - f uu ^ When the regular panels of petit jurors, or either of them, 
cannot be furnished, to make up panels of forty-eight for the trial 
of felonies, or panels of twenty-four from which to take juries in 
misdemeanors, because of the absence of any of such panels, where 
they, or any part of them, are engaged in the consideration of a 
case, the presiding judge may cause said panels to be filled by sum- 
moning such numbers of persons, who are competent jurors, as may 
be necessary to make full the said panels ; and such panels of twenty- 
four shall be used as the regular panels of twenty-four are. The 
presiding judge may draw the tales jurors from the jury-boxes of 
the county, and order the sheriff to summon them, or he may order 
the sheriff to summon tales jurors as provided by law. 

A P ct 35 1878 " ' § 860 - (8914a.) Juries for city courts, how selected. It shall be 
the duty of the clerk of any city court, the judge of which is com- 
missioned by the Governor of this State, and the civil jurisdiction 
of which does not extend beyond the limits of the city where such 
court is held, to select from the grand-jury list and the traverse-jury 
list of the superior court of the county in which such city court is 
located, the names of all grand jurors and traverse jurors who reside 
within the corporate limits of the city where such court is held, and 
to make separate lists of the same, which lists shall be kept in a con- 
sj:>icuous place in his office, and the persons whose names are on such 
lists, respectively, shall be the grand jurors and traverse jurors of 
such city court. The clerk of such city court shall write on separate 
cards, or tickets, the name of each grand juror, and shall place the 
same in a box containing two apartments numbered "one" and 
"two," from which the grand jurors shall be drawn as now required 
by law; said clerk shall write on separate cards, or tickets, the name 
of each traverse juror, and shall place the same in the jury-box, or 
oih<-r similar box now in use, from which the traverse jurors shall 
be drawn, as now required by law; and for such services, the clerk 
-hall have a reasonable compensation to be allowed by the judge. 

» 18784, §861. (8014b.) Drawing and selecting jurors in city courts. All 
laws with reference to the drawing or selecting of jurors in the supe- 
rior courts shall be held to apply, so far as they are applicable, to 
said city courts. But no general law prescribing the compensa- 
tion of jurors, or the manner of fixing the same, shall apply to 
said city courts, unless they are especially referred to and included 
in the Act. 



221 SUPERIOR COURTS. 



Special provisions its tO juri<--.. 



ARTICLE 10. 

BPECIAL PROVISIONH AB TO JURIES. 

§862. (3936.) Juries to be drawn for each week. When the superi or •';;'. ; m 1Jj71 " 2, 
courtis held for longer than one week, the presiding judge shall 1H84 - : ^t j - 41 - 
draw separate panels of petit jurors for each week of the court. 
He may also draw separate panels of grand jurors for each week if, 
in his opinion, the public interests require it. 

This section applies to regular terms: 54 Ga. 371. 

§863. (3937.) Tales jurors, when summoned. When from challenge A p ct ^ 4 1 1 8P/d ' 
or from any other cause there are not a sufficient number of persons 1S84 " 5,pp>3 - 
in attendance to complete the panel of grand jurors, or either panel 
of petit jurors, the judge may in his discretion draw the tales jurors 
from the jury-boxes of the county, and order the sheriff to summon 
the jurors so drawn, or the sheriff or his deputy to summon persons 
qualified, as required by this Code, sufficient to complete the panel; 
and when the sheriff or his deputy is disqualified to summon tales- 
men, they may be summoned by the coroner, or such other person 
as the judge may appoint. 

§864. (3938.) Delinquent jurors. If any person shall be drawn as Act ^ 869 ' 
a juror and duly summoned to appear as such at court, or if any 
person shall be summoned as a tales juror and shall neglect or re- 
fuse to appear, or if any juror shall absent himself without leave of 
the court, the court may fine such person in a sum of not more than 
forty dollars, unless he shall show good and sufficient cause of ex- 
cuse, on oath, filed in the clerk's office of such court within thirty 
days after the opening of said court ; the merits of which excuse 
shall be determined by the next succeeding court. 

§865. (3938.) Term of service. No person shall be compellable to A p ct f 5 1872 ' 
serve on the grand or petit jury of the superior court, or on any jury 
in other courts, exceeding four weeks in any year. Nor shall he be 
allowed to serve on the petit jury of the superior court, or as tales 
juror in any criminal cause, or on any jury in other courts, exceed- 
ing four weeks in any one year, unless actually engaged upon the 
trial of a cause when the four weeks expire, in which case he shall be 
discharged as soon as the cause is decided. 

§866. Term of service by tales jurors. No person shall be compe- - p ct ^ 1882 " 3 - 
tent or compellable to serve as a tales juror upon the traverse jury ^"^ 91 
in the superior court more than two weeks at any one term. The 
provisions of this section shall not apply to any person regularly 
drawn for jury duty, nor to jurors actually engaged in the trial of a 
case at the expiration of the two weeks. 



*M>7 SUPERIOR COURTS. 222 

Special provisions as to juries. 

§867. (3939.) Persons exempt from jury duty. The following per- 
sons shall be exempt from all jury duty, civil and criminal : 

A p Ct i 1S7 " Ministers of the gospel, engaged regularly in discharging minis- 

lj>:s :?: terial duties, 
p. iii. 

ists^' All physicians and apothecaries in the practice of their profession. 

IS78-0,' School teachers engaged in teaching school. 

p. 171. t & ° ° # 

ws p. 98. Millers and ferrymen engaged in their occupation. 

187S p 98 ^^ railroad employees whom the superintendent of a railroad 

[fre^' 1( '' sna ^l certify to the judge are necessary and are actually engaged in 

p. i7i. the work of running railroad-trains. 

1875, p. 98. 

law-*, All male persons over sixty years old. 

1874, p. «. ±\\ telegraph operators. 

^'-^2 ' And officers and members of each fire company in this State, to 

lS^?* 80 ' tne numDer of twenty-five, doing active duty as firemen, whose 
p- 17L names shall be filed in the office of the clerk of the superior court 
by the secretary of such company, on or before the first day of Jan- 
uary of each year. 

1875. p. 96. Clerks connected with the several State departments at the capitol. 

1874, p. 9i. Persons employed at the State Lunatic Asylum. 

1 ^°ii2 Dentists in the actual practice of their professions. 

1 pmli4 Regularly licensed pilots in this State, together with one boat- 

keeper for each pilot boat, actually engaged in the regular manage- 
ment of their boats. 

1884-5, p.w. The members of the various police forces and town marshals of the 
several cities and towns in this State, while so employed on such 
police forces. 

188 iol' ^ telegraph-line repairers actually engaged in repairing telegraph- 

lines. It shall be necessary for them to produce to the court the cer- 
tificate of the manager or superintendent of the telegraph company, 
that they are line-repairers and actually engaged in repairing tele- 
graph-lines. 

I ?p"2i9 Regularly licensed stationary engineers in this State actually en- 

gaged in the regular management of engines at their place of occu- 
pation. 

*vd% 84 ^he s P ec ^ a ^ P a y members of any company of the volunteer forces 
of the State, whose certificates of membership, signed by the com- 
~ ** pany commander and attested by the first sergeant, when produced 

*"* in any court, shall be evidence of the right to the exemption. 

Nothing herein contained shall be construed to work a disqualifica- 
tion of any of the classes named, or to exclude them from the jury- 
box. 

Exemption because of age is a privilege : 75 Ga. 747. 



'Tf~W> 



223 SUPERIOR OOLRTS. 88, 360 



Special provisions as to Juries. 



§808. (3941.) Jury-box or list, how supplied when destroyed. When 
the jury-list and jury-box, or either, shall be Lost or destroyed 1 **^ 
between the time of drawing juries and the beginning of the term i'<)V 
which such drawing was made, or before the service of the precepts 
on the persons named therein, the judge of the circuit m which 
such loss or destruction occurs, shall immediately on being in- 
formed thereof, issue an order to the jury commissioners of the 
county to meet at the county site and prepare a list of citizens 
eligible to serve as jurors under the Constitution of the State, 
which list shall contain the names of not less than two-thirds of the 
"upright and intelligent" citizens of the county, and from this list 
they shall select a sufficient number, not exceeding two-fifths of the 
whole, taking for this purpose the names of the most experienced, 
intelligent, and upright citizens, and, from the list so selected, shall 
at once proceed to draw thirty names of persons to serve as grand 
jurors at the next term of the court; and from the remaining three- 
fifths of the names on such list shall then proceed to draw, in the 
same manner, not less than thirty-six to serve as traverse jurors at 
the next term of the court, and when such drawings have been com- 
pleted, the commissioners shall immediately make out and deliver to 
the clerk of the superior court correct lists of the grand and trav- 
erse jurors so drawn, and the clerk shall at once deliver to the sheriff, 
or to the coroner in case the sheriff be disqualified, proper precepts 
containing the names of the persons drawn to serve as grand and 
traverse jurors, respectively, to be served personally, as required by 
law, and the persons so drawn and served shall, if otherwise eligible, 
be competent to serve as jurors, during the term for which they were 
drawn, without regard to the time of the preparation of the list, the 
drawing of the jurors, or the date of the service of the venire on the 
persons whose names are contained therein. 

§869. (3941a.) Precept, when lost or destroyed, how supplied. In Acts 'J" 880 " 1 * 
case the precepts containing the names of grand and traverse jurors 
drawn for any term of the superior court, or either of such precepts, 
shall be lost or destroyed before the persons named in them, or 
either of them, shall have been served, and there shall be no record 
or official list of the names contained in the original precept so lost 
or destroyed, the jury commissioners of the county shall meet im- 
mediately on being informed of such loss or destruction, and draw 
and deliver to the clerk of the superior court, as now provided 
by law, lists of the jurors so drawn, and the clerk shall forthwith 
prepare and deliver to the proper officer new precepts to be served 
personally, and the persons so drawn, listed and served shall, if 
otherwise competent under the Constitution of this State, be com- 
petent and compellable to serve as jurors for the term for which 
they were drawn, without regard to the date of the drawing and 



§§870-875 SUPERIOR COURTS. 224 



Special provisions ;is to juries. 



delivering of the lists to the clerk, or the date of the issuing or 
Bervice o( the precepts. 

A pp S n^ M ' §870. (3941 b.) Judge may adjourn court and, have jurors draivn. 
If juries shall not have beeD drawn for any regular term of the 
superior court, and there is not time sufficient for drawing and sum- 
moning jurors to serve at such regular term, the judge of the supe- 
rior court for the county in which such failure has occurred, may, 
by order passed at chambers, adjourn such court to another day, and 
require the requisite number of grand and traverse jurors to be sum- 
moned, and may enforce their attendance at such adjourned term. 

§871. (3942.) Juries in special emergencies. Whenever the session of 
any court of record shall be prolonged beyond the week or period for 
which juries were drawn at the close of the preceding term, or the 
judge anticipates that the same is about to be so prolonged, or from 
any other cause such court has convened or is about to convene, and 
there have been no juries drawn for the same, the judge shall, in the 
manner prescribed for drawing juries at the close of the regular term, 
draw such juries as may be necessary, and cause them to be sum- 
moned. 

Applied: 85 Ga. 70. 

A p Ct 8o 1S9 ° 1 ' §872. (3940.) Compensation of jurors, and court-bailiffs. The first 
grand jury impaneled at the fall term of the superior courts of the 
several counties, shall fix the compensation of jurors and court- 
bailiffs in the superior courts of such county for the next succeeding 
year, such compensation not to exceed the sum of two dollars per 
di< in ; and the same compensation shall be allowed to the jurors of 
the several city courts in this State, as is allowed to the jurors of 
the superior courts of the county in which such city court may be 
located; and all laws, whether general or local, in conflict with the 
provisions of this section are hereby repealed. 

A p r 7j 18&5. The pay of tales jurors shall be the same as regular traverse jurors 
and there shall be no distinction in the pay of tales and regular jurors. 

A p %} H ~ H "''• §873. (3940.) Compensation where no grand jury is impaneled. If in 
any county no grand jury should be impaneled in the fall of any 
year, then, as to such county, the compensation provided for in the 
preceding section shall remain as fixed by the grand jury of the 
preceding year. 

^y^ 00 " 1 ' §^74. Pay of jurors who appear, but not sworn. The grand and petit 
jurors who are drawn on the regular panel, and who appear in answer 
to the summons, shall receive compensation for the day of their ap- 
pearance, though they may not be sworn. 

Cott>,550. |875 < (8945.) On failure of court. Whenever there shall be a 
failure of the superior court, in consequence of the non-attendance 
of the judge, or other cause, the jurors summoned for such court 



225 SUPERIOR COURTS. g§876- 



Attorney-general. 



shall stand over to the next succeeding term, in the same manner ae 

suitors and witnesses do. 

§876. (491.) Juror* when counties are interested. All inhabitants^*^ 
of counties who are competent jurors in other oases, are competent 
jurors in any case, when such counties are parties to the stril or inter- 
ested therein in their capacity as corporations or quasi corporation-. 

Citizens competent on trial of person for burning jail: 29 Ga. 105. 

§877. (1672 f.) Who arc competent jurors. Being a citizen or A ^ h:i - 
resident of a municipal corporation, shall not render a person in- ™« p * ' f '- 
competent to serve as a juror in cases in which such municipal cor- 
poration is a party or interested. 

§878. (3929.) Oath of bailiffs taking charge of juries. The following °JgJ] 
oath shall be administered to all bailiffs on duty in the superior 1887 ' p - 33 - 
court, to wit : "You shall take all juries committed to your charge 
during the present term to the jury-room, or some other private and 
convenient place, where you shall keep them without meat or drink 
(water excepted), unless otherwise directed by the court. You shall 
make no communication with them yourself, nor permit any one to 
communicate with them, except by leave of the court. You shall 
discharge all other duties which may devolve upon you as bailiff, to 
the best of your skill and power. So help you God." 

Where a deputized person acted as bailiff in charge of the jury without be- 
ing sworn, a new trial will be granted : 72 Ga. 674. 

§879. (3947.) Refreshments. When the jury is confined in the^iJ^* 

investigation of a case for a length of time which exposes them to iss/J', 

hunger and cold, the court may, on application from such jury, p43, 

direct them to be furnished with such refreshments as the presiding 

judge may deem proper; and the judge shall draw his warrant 

on the officer whose duty it is to audit claims against the county 

where the investigation is had, who shall order the same paid out of 

any funds on hand. The judge may also allow the jury fire if the 

circumstances require it. This section shall not repeal any local 

law on this subject. 

The old idea of starving a jury to coerce a verdict has passed away : 
75 Ga. 466. 



ARTICLE 11. 

ATTORNEY-GENERAL. 

t 

§880. (369.) Duties. It is the duty of the attorney-general to act Const., 
as the legal adviser of the Executive Department, to represent the 10 > P ar - a - 
State in the Supreme Court in all capital felonies, and in all crim- 
inal and civil cases in any court when required by the Governor, and 
to perform such other services as shall be required of him by law. 
15 



^SS1-SS4 PROCEEDINGS TO COMMITMENT, INCLUSIVE. 226 



Proceedings prior to arrest. 



PROCEEDINGS TO COMMITMENT, INCLUSIVE. 



ARTICLE 1. 

PROCEEDINGS PRIOR TO ARREST. 

A p°\ S i 1S ' 2 ' §881. (58.) Governor may offer rewards for the arrest of felons. The 
un&o*' 10 ** Governor shall, in his discretion, offer, and cause to be paid, re- 
Hfc MB ' wards for the detection or apprehension of the perpetrator of any 
felony committed within this State, such reward not to exceed the 
sum of two hundred and fifty dollars in case of felonies not capital, 
and not to exceed the sum of five hundred dollars in capital fel- 
onies ; but no such reward shall be paid to any officer who shall 
arrest such person in the regular discharge of his duty, by virtue 
of process in his hands to be executed, nor to any person who has 
arrested the offender previous to the publication of the reward. 
And whenever he receives reliable information that any gin-house 
in this State has been unlawfully burned, or set on fire, he shall 
offer a reward of not less than two hundred and fifty dollars, nor 
more than five hundred dollars, for the apprehension of the incen- 
diary with proof sufficient to convict, and in no event shall the 
reward be paid until after the conviction of the offender. 

§882. (4713.) Who may issue warrants. Any judge of a superior, 
city, or county court, or justice, or any corporation officer clothed 
by law with the powers of a justice, may issue his warrant for the 
arrest of any offender against the penal laws, based either on his 
own knowledge or the information of others given to him under oath. 
Acta 1865-6, §883. (4714.) What affidavit and warrant must state. An affidavit 
made, or warrant issued, for the arrest of an offender against the 
penal laws, shall state as nearly as practicable the following facts, 
to wit : The offense, the county in which the same was committed, 
and the time when committed ; and when the offense charged is 
larceny, the ownership of the property alleged to have been stolen, 
or the person from whose possession it was taken, shall, as far as 
practicable, be stated in the affidavit and warrant. 

Cited : 86 Ga. 273. 

§884. (4715.) Form of affidavit. An affidavit substantially com- 
plying with the following form, shall, in all cases, be sufficient : 



227 PROCEEDINGS TO COMMITMENT, INCLUSIVE. gf --:,---- 

. ■ » 

Proceedings prior to arrest. 

Georgia, County. 

Personally came A. B., who on oath saith that, to the best of 

his knowledge and belief, C. D. did, on the day of , in the 

year , in the county aforesaid, commit the offense of ; 

and this deponent makes this affidavit that a warrant may issue for 
his arrest. A. B. 

Sworn to and subscribed before me, this the day of . 18 — 

, J. P. 

An affidavit neither attested by an officer authorized to administer oaths, 
nor sworn to in open court, is void : 55 Ga. 380. That it did not specify that 
the weapon was likely to produce death, did not render it invalid : 73 Ga. 547. 

It is only necessary that the offense be charged to the best of the affiant's 
knowledge and belief : 91 Ga. 207. 

§885. (4716.) Form of warrant. The following form maybe used 
for a warrant, a substantial compliance with which shall be deemed 
sufficient: 

Georgia, County. 

To any sheriff, deputy-sheriff, coroner, constable or marshal of said State — 
Greeting : 

A. B. makes oath before me that on the day of , in the 

year , in the county aforesaid, C. D. did commit the offense 

of . You are therefore commanded to arrest the body of the 

said C. D., and bring him before me, or some other judicial officer 
of this State, to be dealt with as the law directs. You will also levy 
on a sufficiency of the property of said C. D. to pay the costs in the 
event of his final conviction. Herein fail not. 

,j. p. 

This warrant was not supported by affidavit, nor did it allege time or place: 
68 Ga. 367. 

Improper to place the warrant in the hands of the prosecutor, who was also 
constable, to execute it: 79 Ga. 768. 

The officer may not seize property for costs unless directed in the warrant : 
13 Ga. 494 ; 11/128. 

§886. (4717.) Special id arrant. No judicial officer, except a judge 
of the superior court, shall issue a special warrant returnable only 
before himself; nor shall any judge issue such warrant out of his own 
judicial circuit. In such cases the warrant, though special, shall be 
treated as a general warrant. 

§887. (4719.) Officer may require bond to prosecute. The officer issu- 
ing a warrant upon any sufficient grounds of suspicion, may require 
the applicant first to file a bond, with sufficient sureties, to prosecute 
the suit in the event of a committal. 

§888. (4720.) Issuedin any county, and executed without backing. A *p Ct | 9 1665 " 6 ' 
warrant may be issued in any county, though the crime was commit- 
ted in another; and a warrant once issued may be executed in any 



§§ SS9-895 PROCEEDINGS TO COMMITMENT, INCLUSIVE. 228 

Arrest. 

county, without being backed or endorsed by a judicial officer upon 
its being carried from one county to the other. 
Act jyp--'- §889. (4012c.) Arrests for cruelty. Upon complaint on oath or 
affirmation to any magistrate authorized by law to issue warrants in 
criminal cases, that the affiant has just and reasonable cause to sus- 
pect that any of the provisions of law for the prevention of cruelty 
to animals are being violated, or are about to be violated, in any par- 
ticular building or place, such magistrate shall immediately issue 
and deliver a warrant to any one authorized by law to make arrests 
in criminal cases, authorizing and requiring him to enter and search 
such building or place and to arrest any person there present, found 
violating any of said laws, and to bring such person before the near- 
est or most accessible magistrate of competent jurisdiction, to be 
dealt with according to law. 



ARTICLE 2. 

ARREST. 



St% , eee §890. (5034.) Privilege of electors. Electors shall in all cases, 
3, par.i. except for treason, felony, larceny, and breach of the peace, be privi- 
leged from arrest during their attendance on elections, and in going 
to and returning from the same. 
C \rt S 3'sec §^91. (5062.) Privilege of members of the legislature. The members 
7, par. 3. f both houses shall be free from arrest during their attendance on 
the General Assembly, and in going thereto or returning therefrom, 
except for treason, felony, larceny, or breach of the peace. 
Act £ 3 1884 " 5 > §892. Privilege of militiamen. The members of the volunteer forces 
shall in all cases, except treason, felony, or breach of the peace, be 
privileged from arrest during their attendance at drills, parades, 
meetings, encampments, and the election of officers, and during the 
performance of any public duty as such members, and in going to 
and returning from the same. 

§893. (4728.) What constitutes an arrest. An actual touching with 
the hand is not essential to constitute a valid arrest. If the defend- 
ant voluntarily submits to be considered under arrest, or yields 
on condition of being allowed his freedom of locomotion, under the 
discretion of the officer, the arrest is complete. 
The facts here constituted an arrest: 20 Ga. 369. 

§894. (4729.) Breaking open doors. In order to arrest under a 
warrant charging a crime, the officer may break open the door of any 
house where the offender is concealed. 

§895. (4722.) Arrest and 'posse. Every officer is bound to execute 
the penal warrants placed in his hands, and to that end he may 
summon to his assistance, either in writing or verbally, any of the 



229 PROCEEDINGS TO COMMITMENT, INCLUSIVE. g§ 306-808 



Arn;Ht,. 



citizens of the neighborhood or county. Ah the posse of inch officer, 
their acts shall be subject to the same protection and consequences 
as official acts. 

A person thus summoned is not an officer nor a mere private person. He is 
protected to the same extent as if he was an officer having the warrant, and it 
is not necessary that he should be in the actual presence of the officer : 98 G*. 77. 

Duty of one seeking to make an arrest, as to his authority and the knowledge 
of defendant : 93 Ga. 77 ; 85/718. 

Distinction between calling one to his assistance, and merely attempting to 
delegate his authority : 93 Ga. 85. 

§896. (4723.) Arrest without warrant. An arrest may be made for 
a crime by an officer, either under a warrant, or without a warrant, 
if the offense is committed in his presence, or the offender is endeav- 
oring to escape, or for other cause there is likely to be a failure of 
justice for want of an officer to issue a warrant. 

As a general rule, a warrant is required to render an arrest legal, whether 
it be made by a policeman, or any public officer. The exceptions are, where an 
offense is committed in the officer's presence ; where the offender is endeavor- 
ing to escape; and where, from other cause, there is likely to be a failure of 
justice for want of an officer to issue a warrant : 91 Ga. 206. There must be 
an offense committed : 64 Ga. 125 ; 30/426. 

Distinction between authority of an officer to arrest without a warrant in 
cases of felony and of misdemeanor : 91 Ga. 205 ; 93/87. 

It is in his presence when any of his senses affords him knowledge that an 
offense is being committed : 92 Ga. 63. A policeman or watchman under city 
ordinances is as much under the protection of the law in making an arrest as 
any_public officer: 30 Ga. 426; 89/446; 75/842; 91/206. But he has no more 
power in making arrests without his municipal police jurisdiction, than a private 
person : 90 Ga. 326. Where one is arrested on suspicion that he has violated a 
State law, he should be taken before a magistrate and have the suspicion judi- 
cially verified within a reasonable time : 62 Ga. 290. 

An officer is not necessarily a trespasser in making an arrest on probable 
ground of suspicion and without a warrant. He is, by virtue of his office, 
empowered by law to arrest felons, or those that are suspected of felony : 
30 Ga. 426. 

§897. (4718.) Selection of judge to try the cause. The arresting 
officer shall carry the prisoner before the most convenient and acces- 
sible judicial officer authorized to hear the cause, unless the prisoner 
shall desire otherwise; in which case, if there be no suspicion of 
improper motive, the arresting officer shall carry him before some 
other judicial officer. But in no case has a prisoner the right to 
select the justice before whom he shall be tried. 

§898. (4721.) Officer may make arrest in any county. An arresting ^JfjaJSJ" 
officer may arrest any person charged with crime, under a warrant 
issued by a judicial officer, in any county of the State, without re- 
gard to the residence of said arresting officer; and it is his duty to 
carry the accused, w T ith the warrant under which he was arrested, to 
the county in which the offense is alleged to have been committed, 
for examination before any judicial officer of that county. 



|§ 89(M»8 PKOCKKPTXGS TO COMMITMENT, INCLUSIVE. 230 

Arrest. 

uk»p.m. The county where the alleged offense is committed shall pay the 
expenses of the arresting officer in carrying the prisoner to the 
county; and the omcer may hold or imprison the defendant long 
enough to enable him to gel ready to carry the prisoner off. 

§899. (4726.) Duty of officer arresting. Every officer arresting under 
a warrant shall exercise reasonable diligence in bringing the person 
arrested before the person authorized to examine, commit, or receive 
bail. 

§900. (4724.) By private person. A private person may arrest an 
offender, if the offense is committed in his presence or within his 
immediate knowledge; and if the offense is a felony, and the offen- 
der is escaping, or attempting to escape, a private person may arrest 
him upon reasonable and probable grounds of suspicion. 

It is the duty of a private person, who is present when a felony is commit- 
ted, to arrest the felon with a view to take him before a magistrate, and, after 
a felony is committed, he may arrest upon reasonable and probable ground of 
suspicion: 12 Ga. 293; 87/50. 

§901. (4725.) Duty of person arresting . In every case of an arrest 

without warrant, the person arresting shall, without delay, convey 

the offender before the most convenient officer authorized to receive 

an affidavit and issue a warrant. And no such imprisonment shall 

be legal beyond a reasonable time allowed for this purpose. 

The object of the arrest is to carry the prisoner before a magistrate, and the 
prisoner should be taken without delay before the most convenient officer au- 
thorized to issue a warrant : 69 Ga. 252; 46/80; 63/514; 73/662; 77/419. 

^> ct i38 S8 ° 1 ' §902. (4586a.) Police of railroads. The conductors of a train 
carrying passengers, are invested with all the powers, duties, and 
responsibilities of police officers while on duty on their trains: 
Provided , nothing herein contained shall affect the liability of any 
railroad company for the acts of its employees. When a passenger 
is guilty of disorderly conduct, or uses any obscene, profane, or vulgar 
language, or plays any game of cards, or other game of chance, for 
money or other thing of value, upon any passenger-train, the 
conductor of the train may stop it at the place where such 
offense is committed, or at the next stopping place of the train, 
and eject the passenger from the train, using only such force as may 
be necessary to accomplish the removal, and the conductor may 
command the assistance of the employees of the company and of 
the passengers on the train to assist in the removal; and the con- 
ductor may cause any person violating the provisions of this 
section, or the laws of this State, to be detained and delivered to 
the proper authorities for trial as soon as practicable. 
Cited : 81 Ga. 485. 

Actsi&fto-i, §903. Police power conferred on conductors, etc. The conductors, 
motormen, and drivers of street-railroad cars are invested with all 



281 PROCEEDINGS TO COMMITMENT. INCLUSIVE. .:. 904-90* 

Courts of inquiry, and the proceeding! therein. 

the powers, duties, and responsibilities of police officers while on duty 
on their trains or cars, and while on duty at the termini oftheii Lin 

Provided, nothing herein contained shall affect the liability of any 
railroad company for the acts of its employees. 

See 89 Ga. 554. 

§904. Authority to eject passengers, etc. When a passenger is guilty 
of disorderly conduct, or uses any obscene, vulgar, or profane lan- 
guage, or plays any game of cards, or other game of chance, for 
money or other thing of value, or is guilty of any disorderly or 
improper conduct tending to cause a breach of the peace, said con- 
ductors, motormen, and drivers are authorized to eject him from 
the cars, using only such force as may be necessary to accomplish 
the removal, and they may command the assistance of the employees 
of the company, and the passengers on such trains or cars, to 
assist in the removal, and they may cause any person who 
violates the provisions of this section, or who commits acts in vio- 
lation of law, to be detained and delivered to the proper officers 
for trial as soon as practicable; and said officers are authorized to 
exercise the police powers hereby conferred, at the termini also of 
their lines, while on duty either as conductors, motormen, or drivers. 

§905. (4577.) Police at place of worship, hoiv appointed. The jus- 
tices in each militia district, in which is situated an incorporated 
church or camp ground, shall, upon application in writing, signed 
by the trustees or members of the corporation of such church or 
camp ground, or other incorporate place of divine worship, appoint 
three or more suitable persons to act as a police for such place of 
public worship, whose duty it shall be to apprehend all persons dis- 
turbing the congregation assembled at such place for religious 
worship, or otherwise violating the laws, and immediately carry 
them before the nearest justice, who shall issue a warrant for said 
persons, and proceed to take examination in such cases in the man- 
ner prescribed by law. 



ARTICLE 3. 

COURTS OF INQUIRY, AND THE PROCEEDINGS THEREIN. 

§906. (4730.) Who may hold. Any judge of the superior or county 
court, or justice, or city or town officer, who may be ex officio justice 
of the peace, may hold a court of inquiry to examine into an accusa- 
tion against a person* legally arrested and brought before him. The 
time and place of such inquiry shall be determined by him. 

Cannot be begun and held on Sunday : 62 Ga. 449. 



§§ 907-91 1 PROCEEDINGS TO COMMITMENT, INCLUSIVE. 282 

Courts of inquiry, and the proceedings therein. 

§907. (4'ISjl.) Cther associates. The officer before whom the ac- 
6used is brought may associate with him, in the investigation, one or 
more justices: in which event a majority shall decide all questions. 
It' there are only two presiding, the original justice shall determine 
all tln> questions where the court is not agreed. 

£908. (4782.) Time granted parties. A reasonable time shall be 
given to the defendant or prosecutor for the preparation of his case, 
and in no event shall the defendant be forced to trial without the aid 
o{ counsel, if there be a reasonable probability of his securing coun- 
sel without too great delay. And where the cause is postponed to a 
future day at the instance of either party, or by the court, it shall 
not be necessary to commit the defendant to jail pending the hear- 
ing; but he shall have the right to give bail for appearance at the 
hearing before said court of inquiry, if the offense is bailable under 
the authority of said court. 

A bond given by one arrested for bastardy was legal: 45 Ga. 173. 

§909. (4736.) Attendance of witnesses. A court of inquiry shall 
have power to compel the attendance of all witnesses resident within 
the county, after notice of twenty-four hours, and to this end may 
order their arrest. 

§910. (4733.) Evidence. The court shall hear all legal evidence 
submitted by either party, and shall always permit the defendant to 
make his own statement of the transaction (not under oath) if he 
desires to do so. The weight to be given to such statement shall be 
entirely in the discretion and sound judgment of the court. When- 
ever such statement is made, it shall be the duty of the court to 
reduce it to writing, and return it with the other papers to the proper 
court in the event of a commitment. 

The statement, when identified and proven, is admissible against defendant 
on his final trial, and the writing is the best evidence of what defendant said: 
54 Ga. 156 ; 65/199 ; 94/83. 

The presumption is that the magistrate reduced it to writing, and parol evi- 
dence as to what defendant said is inadmissible, in the absence of proof that 
it was not written out or has been lost or destroyed : 94 Ga. 83; 54/158. To 
stand as a part of the magistrate's report, it must be taken down under the 
direction of the court: 45 Ga. 73. This conviction rests upon the statement: 
34 Ga. 353. 

The justice had no right to examine the defendant to obtain from him con- 
tradictory statements — to act as an inquisition: 54 Ga. 156. 

When a State's witness is detained from court by defendant, his testimony 
taken down by the magistrate may be read on the trial : 19 Ga. 402. Used to 
impeach : 69 Ga. 13. 

§911. (4734.) Abstract of evidence. If the charge be of a felony, 
the court shall cause an abstract of all the evidence to be made and 
returned as above. 



233 PROCEEDINGS TO COMMITMENT. INCLUSIVE 912-917 



Courts of inquiry, and the proceedingi therein. 



'f7- 9/. 



This differs from an approved record, and also from the voluntary state- 
ment made by the accused, and what a witness swore can be proved by one 
who heard it as well as by this abstract: 70 Ga. 020. 

§912. (4738.) Rule of decision. The duty of the court of inquiry 

is simply to determine whether there is sufficient reason to suspect 

the guilt of the accused, to require him to appear and answer before 

the court competent to try him, and, whenever such probable cause 

exists, it is the duty of the court to commit. 

Magistrate cannot give judgment against defendant for costs, other than 
his own witnesses : 40 Ga. 476. 

§913. (4744.) Committing for different offense. A court of inquiry 
may commit for a different offense than that stated in the warrant, 
if the evidence requires it. -/*-*-* /H^jl*-* 

§914. (4739.) Commitment. The following form, or one in sub- 
stance the same, shall be deemed a sufficient commitment : 
Georgia, County. 

A. B. having been arrested on a warrant for the offense of 

and brought before me, after hearing evidence, it is ordered that he 

be committed for trial for the offense of . And the jailer of 

said county (or any other county, if necessary) is required to 
receive and safely keep him until discharged by due process of law. 

Witness my hand and seal, this day of , 18 — . 

, J. P. (seal.) 

§915. (4735.) Binding over witnesses. In the event of a commit- 
ment, the court, in its discretion, may require the witnesses, in 
behalf of the State or others, to give suitable bonds for their appear- 
ance at court, with or without sureties, as the circumstances seem 
to demand. 

§916. (4737.) Names of State's witnesses to be endorsed on- warrant . ^ctsisTS, 
Whenever any justice, or other judicial officer, sitting as a court of 
inquiry, shall bind over a defendant to appear at the superior court 
to answer any charge, it shall be the duty of such officer to indorse 
on the warrants, the names of each witness for the State. 

§917. (3846.) Attendance of witness before grand jury. When any Act | 3 1873, 
person accused of a criminal offense before a court of inquiry is 
bound over, or committed for trial in the superior court, the officer 
holding the court of inquiry shall, at the time of the preliminary 
trial, give a subpoena to all material witnesses examined for the 
State, to appear and testify before the grand jury at the term to 
which the defendant is committed, or bound to appear, and after 
such preliminary trial, and commitment or binding over, the prose- 
cutor may apply to the clerk of the superior court and obtain a sub- 
poena for any person deemed by him to be a material witness for 
the State before the grand jury, and the subpoenas issued under this 
section shall be effectual in compelling the attendance of the wit- 



II 01&-982 PROCEEDINGS TO COMMITMENT, INCLUSIVE. 234 



Courts of inquiry, and the proceedings therein. 



nesses to appeal and give evidence before the grand jury, and the 
officer holding the court of inquiry, and the clerk, shall, at the term 
of the court to which the accused is committed or bound to appear, 
furnish, on the first day of the term, the prosecuting officers of the 
State with a complete list of all persons so subpoenaed. 

$918. (8847.) Witne&sesfor the accused. The person accused may 
also, upon application to the committing officers, or to the clerk of 
the superior court to which he is committed or bound to appear for 
trial, obtain subpoenas for such witnesses as he may deem material 
for his defense, which subpoenas said officers shall issue, requiring 
the witnesses to appear at the term of the court to which the accused 
is committed or bound to appear, and until his case is ended, and the 
subpoenas so issued shall have power and authority to compel the 
attendance of the witnesses at said court : Provided, that such sub- 
poenas shall not extend to witnesses for the defendant, out of the 
county, until a true bill is found against the defendant. 

Cited : 71 Ga. 481 ; 93/168. 

Act | 4 1S73 ' §919. (3848.) Continuance refused, ivhen. No party failing to use 
the means provided in the preceding sections, when within his 
power, shall be entitled to a continuance because said witnesses are 
not in attendance at the term of the court when his case is called 
for trial, if he is prosecuted for the same criminal act. 

Act | 1866 " 6 ' §920. (4740.) County sending 'prisoner to jail in adjoining county, 
liable for fees. When there is no secure jail in a county, any person 
committing an offense in said county shall be sent to jail in the 
nearest county having a secure jail; the county where the offense is 
committed shall be primarily liable for jail fees and costs, and shall 
pay the same monthly in advance, and for the purpose of raising 
funds to pay the same, the ordinary may levy and collect an addi- 
tional tax. 

Prisoner may be ordered to another county for safe-keeping: 26 Ga. 276. 

§921. (4741.) Jailer not bound to receive prisoner, when. No jailer 
shall be bound to receive a prisoner from another county until the 
jail fees and costs are provided for as set forth in the preceding 
section . 

§922. (4742.) Bail. If bail is tendered and accepted, no regular 
commitment need be entered, but a simple memorandum of the 
fact of bail being taken. A reasonable opportunity shall be allowed 
the accused to give bail, and even after commitment and imprison- 
ment, the committing court may order the prisoner brought before 
him, to receive bail. 

Magistrate may require fresh security when he has been deceived, or has 
taken insufficient security: 9 Ga. 49. 



285 PROCEEDINGS TO COMMITMENT, INCLUSIVE. &§ 928-02 

CourtH of inquiry, and the proceedings therein. 

§928. (4748.) Waiving trial. If the parly waives a hearing and 
tenders bail, a memorandum of these facts shall be entered on the 
warrant; and this may be done by the party charged before arrest, 
and when done, shall operate as a supersedeas. 

§924. (4745.) Disposition of papers. The commitment shall be 
delivered to the officer in whose charge the prisoner is placed, to be 
delivered with the prisoner to the jailer, and a memorandum of the 
fact entered on the warrant. The warrant, and all the other papers, 
shall be forwarded to the clerk of the superior court, or other court 
having jurisdiction of the crime, to be delivered to the solicitor- 
general . 

§925. (4709 b.) Duty of justice and clerk as to costs . A justice who Act ^ 1874 ' 
commits a prisoner to jail, or binds him for his appearance at the Cobb, 644 - 
superior or city court, to answer to a criminal offense, shall make 'J*7 ~ / 
out a bill of the costs which may have accrued in the court below, 
and send it up with the other papers in the case; and the clerk of 
said court shall tax said costs with the other costs which may have 
accrued in the case, in the superior or city court, as the case may 
be; and the sheriff of said county shall collect the costs due the 
justice and constable, with the other costs in the case, and pay 
them over to the officers entitled thereto. If the accused should be 
discharged for want of. sufficient cause of commitment, the justice 
may, in his discretion, direct the costs to be paid by the prosecutor. 

53 Ga. 676. 

§926. (4748.) Informality no ground of discharge. No prisoner Cobb ' 856 - 
shall be discharged on a writ of habeas corpus because of informality 
in the commitment, or of the proceedings prior thereto, provided 
the foregoing provisions of this Article have been substantially com- 
plied with. 

§927. (786 c.) Municipal courts may commit offenders. Any mayor, Acts_isso-i. 
recorder, or other proper officer presiding in any municipal court, 
shall have authority to bind over, or commit to jail, offenders 
against any criminal law, whenever, in the course of an investigation 
before such officer, a proper case therefor shall be made out by the 
evidence. 

§928. (1626.) Officers may visit and search vessels, etc. Civil officers Cobb - 9n - 
may, at all times, visit and search all vessels, covered flats, or arks, 
and boats engaged in fishing, or trading illegally on any river, and 
cause offenders, therein found, against any of the laws, to be com- 
mitted or bound over to answer for such offenses. 



B929 INDICTMENT AND PRESENTMENT. 236 



Form of indictment. 



INDICTMENT AND PRESENTMENT. 



ARTICLE 1. 



FORM OF INDICTMENT. 



Cobb, 533. §929. (4628.) Form of indictment. Every indictment or accusa- 
tion of the grand jury shall be deemed sufficiently technical and 
correct, which states the offense in the terms and language of this 
Code, or so plainly that the nature of the offense charged may be 
easily understood by the jury. The form of every indictment or 
accusation shall be as follows: 

* 'Georgia, County. 

' 'The grand jurors selected, chosen, and sworn for the county 

of , to wit: , in the name and behalf of the citizens of 

Georgia, charge and accuse A. B., of the county and State afore- 
said, with the offense of , for that the said A. B. (here state 

the offense, and the time and place of committing the same, with 
sufficient certainty) , contrary to the laws of said State, the good 
order, peace and dignity thereof." 

If there should be more than one count, each additional count 
shall commence with the following form: 

"And the jurors aforesaid, in the name and behalf of the citizens 
of Georgia, further charge and accuse the said A. B. with having 

committed the offense of (here state the offense as before 

directed), for that," etc. 

The test of substance is prescribed in this section t 87 Ga. 523. 

An indictment is sufficient if the offense is charged in the terms and lan- 
guage of the Code, or so plainly that the nature of the offense charged may 
be easily understood by the jury. It should leave nothing to inference or im- 
plication. Its statements should be so plain that a common man may with- 
out doubt or difficulty, from the language used, know what is the charge made 
against the accused: 3 Ga. 534; 90/443; 11/240; 7/3; 18/465; 3/417. Arson: 
17 Ga. 130. Assault to murder : 18 Ga. 465 ; 69/747 ; 90/441 ; 92/36. 

Attempt to commit larceny : 36 Ga. 449. Breaking and entering to steal : 
68 Ga. 836. Bastardy: 3 Ga. 539; 5/494; 28/21. Burglary: 67 Ga. 739. Em- 
bezzlement : 76 Ga. 553. Employing servant of another : 44 Ga. 330. Forcible 
entry and detainer: 24 Ga. 191. Gaming-house: 68 Ga. 340. Harboring sea- 
man: 73 Ga. 747. Incestuous adultery: 11 Ga. 53. Kidnapping: 74 Ga. 13. 
Larceny from the house: 10 Ga. 517. Malicious mischief in killing a cow: 



287 INDICTMENT AND PRESENTMENT. i 92Q 

Form <>f Indictment. 

70 Ga. 723. Malpractice in office: 45 Ga. 557. Murder: 7 Ga. 16; 41/502; 
47/524; 66/309; 7J/44, 96; 63/600. Murder, killing an officer: 17 Ga. 194; 
18/383. Retailing without taking oath: 32 Ga. 596. Receiving stolen goods: 
75 Ga. 253. Selling liquor to minor: 75 Ga. 258. Treasurer buying orders: 
47 Ga. 523. 

If all the facts which the indictment charges can be admitted, and still the 
accused be innocent, the indictment is bad; but if, taking the facts alleged as 
premises, the guilt of the accused follows as a legal conclusion, the indictment 
is good : 63 Ga. 534. It will sustain a conviction if the judgment would not be 
arrested ; if the judgment would be arrested, a verdict of not guilty is no pro- 
tection : 36 Ga. 447. 

The objects specified for requiring particularity in setting out an offense : 
13 Ga. 400; 90/444. 

This section was not intended to dispense with the substance of good plead- 
ing, nor to deny to one accused the right to know enough of the particular 
facts constituting the alleged offense to be able to prepare for trial : 90 Ga. 444. 

The description of the offense, not the name given to it, characterizes it: 

3 Ga. 419 ; 31/208 ; 25/689. 

No allegation which is descriptive of the identity of that which is legally 
essential to the claim or charge, can be rejected. If the indictment sets out 
the offense as done in a particular way, the proof must show it so : 50 Ga. 591 ; 
64/449, 61 ; 92/48. Even if the descriptive terms be unnecessary : 64 Ga. 449. 

If the exceptions in a statute are stated in the enacting clause, it is neces- 
sary to negative them; otherwise not: 13 Ga. 435; 17/133; 22/545; 26/605; 
16/200; 93/187; 89/483. The test is, does the negative form an essential in- 
gredient in the thing sought to be established : 50 Ga. 104. 

The names of all the grand jurors may be inserted in one handwriting : 
63 Ga. 318. Slight mistake in setting out juror's name, immaterial if there be 
no doubt of the identity of the person : 63 Ga. 616. 

Whenever the name of the party by whom or against whom the crime was 
committed is known, it is absolutely necessary to insert it: 4 Ga. 141. The 
practice when persons or names are unknown : 4 Ga. 141, 473 ; 84/466. Should 
be described by the name by which he is generally known : 65 Ga. 150 ; 69/224 ; 
63/456. 

As a general rule, the time alleged will not be material, so it be previous 
to finding the indictment, and within the time limited for the prosecution: 

4 Ga. 341; 11/54; 17/360; 80/714; 85/220; 90/448; 93/48; 13/396; 18/736; 
64/347. The exceptions stated : 17 Ga. 439. 

When time enters into the nature of the offense, the rule does not apply: 
11 Ga. 53; 17/442. The time laid in describing a written instrument, record, 
etc., must be proved: 17 Ga. 439. Without demurrer, the allegation of an 
impossible day, or a day subsequent to the trial, does not make the indict- 
ment bad : 25 Ga. 515 ; 55/304, 625. It is bad in form : 58 Ga. 332 ; 65/410. 
"In the year 1846," means in the year of our Lord 1846: 3 Ga. 18. 

The form need not be followed to the letter ; it is sufficient if it be conformed 
to in all material particulars : 45 Ga. 57. A conclusion is proper if it follows 
the form : 25 Ga. 689 ; 88/588 ; 66/160. 

Two distinct offenses cannot be joined in the same count, but different 
grades of the same offense may be : 13 Ga. 399 ; 12/293 ; 20/155 ; 87/516 ; 65/449. 

Principals and accessories after the fact may be included in the same count : 
10 Ga. 48. 



$900 INDICTMENT AND PRESENTMENT. 238 

When two returns of " no bill " are a bar. 

Misjoinder in the same count is matter of form: 87 Ga. 516. 

In misdemeanors the joinder of several offenses will not, in general, vitiate 
the proceedings at any stage : 46 Ga. 208. 

Offenses of the same nature, differing only in degree, and varying in their 
punishment, may be joined and tried at the same time: 11 Ga. 92, 226; 12/316; 
40/534; 65/449; 43/218; 72/180; 88/91; 59/784; 91/126. 

Some not of the same nature may be joined, if they constitute but one trans- 
action: 65 Ga. 449. 

More than one count is not necessary to the substance of an indictment : 
87 Ga. 523. 

Counts may be joined for principal and accessory before the fact : 45 Ga. 57. 
Assault to murder by shooting, and shooting at another: 52 Ga. 565 ; and such 
assault with a knife, with stabbing: 43 Ga. 218. Receiving stolen goods, with 
larceny from the house : 65 Ga. 451 ; and with simple larceny : 61 Ga. 212. Sev- 
eral forgeries : 90 Ga. 347. 

Counts for felonies and misdemeanors cannot be joined : 57 Ga. 66 ; 77/513. 

Where principals in the first and second degree are punished alike, no dis- 
tinction need be made in the indictment : 77 Ga. 764. 

If two distinct offenses are charged, and there is no demurrer, the State may 
be compelled to elect : 65 Ga. 449. 

Election cannot be compelled if the two counts vary the charges as to the 
same act and the punishment may be the same : 26 Ga. 611 ; 58/577 ; 90/347 ; 
69/29. "When husband is charged with whipping his wife, several witnesses 
may testify to several beatings, and State not compelled to elect: 75 Ga. 576. 
Where one count charged various acts going to make up the embezzlement 
charged, election not compelled: 76 Ga. 552. Record perfected by order nunc 
pro tunc: 91 Ga. 8. 

The proper time to compel an election : 11 Ga. 226 ; 65/449. 

It is a general principle, that whatever it is necessary to allege, it is neces- 
sary to prove : 26 Ga. 614. 



ARTICLE 2. 

WHEN TWO RETURNS OF "NO BILL" ARE A BAR. 

Cobb.a*. §930. (4708.) Two returns of u no bill" a bar. Two returns of "no 
bill" by grand juries, on the same charge or accusation, shall be a 
bar to any future prosecution for the same offense, either under the 
same or another name, unless such returns have been procured by 
the fraudulent conduct of the person charged, on proof of which, or 
of newly discovered evidence, the judge may allow a third bill to 
be presented, found and prosecuted. 

This does not contemplate that the person charged is entitled to a judgment 
of acquittal or to a discharge from the crime: 53 Ga. 81. 



239 INDICTMENT AND PRESENTMENT. 881 



special presentments tre&tedaa Indictments. 



ARTICLE 8. 

special presentments treated ah indictments. 

§931. (4632.) Presentments treated as indictments. All special ^y W8> 

presentments by the grand jury, charging defendants with violations 
of the penal laws, shall be treated as indictments. And it shall not 
be necessary for the clerk to enter such presentments in full upon 
the minutes, but only the statement of the case, and finding of the 
grand jury as in cases of indictments, nor shall it be necessary for 
the solicitor-general to frame bills of indictment on such present- 
ments, but he may arraign defendants upon such presentments, 
and put them upon trial in like manner as if the same were bills of 
indictment. 

This section obliterates the distinction between indictments and present- 
ments : 73 Ga. 205. 

The form is the same whether the jury indicts or presents : 41 Ga. 583. 



§§982-985 ARREST AND BAIL AFTER INDICTMENT, ETC. 240 

Bom- h- war rant. Bail, surrender of principal, and forfeiture of bond. 

ARREST AND BAIL AFTER INDICTMENT, AND 
PROCESS AGAINST CORPORATIONS. 



ARTICLE 1 



BENCH-WARRANT. 



§932. (4727.) Bench-warrant. A bench-warrant is one issued by 
a judge for the arrest of one accused of a crime by a grand jury. 
Every officer is bound to execute it within his jurisdiction, and 
every person so arrested must be committed to jail until bail is 
tendered; any judicial officer, or the sheriff of the county where the 
accusation was found, may receive the bail, fix the amount of the 
bond, and approve the sureties, unless it be a case that is bailable 
only before some particular officer. 

A bench-warrant and a warrant of commitment, after indictment, are suffi- 
cient if they recite the fact of indictment and describe the offense generally : 
9 Ga. 73. 



ARTICLE 2. 

BAIL, SURRENDER OF PRINCIPAL, AND FORFEITURE OF BOND. 

if^ 1878 ' 9 ' §933. (4747.) Who may take bail. Capital offenses are bailable 
only before a judge of the superior court, and is, in every case, a 
matter of sound discretion. All other cases are bailable by the 
committing court. 

The superior court has the same power, in relation to bail, that the court of 
king's bench has, and may grant bail in all bailable cases, until the accused is 
in execution : 24 Ga. 391. The whole subject is under the control of the court, 
and its discretion will not be controlled unless flagrantly abused: 33 Ga. 192. 

SsSiffSfl §934. (4747.) Bail but twice. No person shall give bail more 
P' 66 ' than twice before trial for the same offense, after presentment or 
indictment found. 

§085. (4740.) Bail surrendering principal. Bail may surrender their 
principal in vacation to the sheriff, or in open court, in discharge 
of themselves from liability, and such privilege shall continue to 
the day of the term, without liability for costs for a forfeiture of 
the bond. After forfeiture, and before final judgment, the bail 



241 ARREST AND BAIL AFTER INDICTMENT. E'l ( 



Hail, Hurn-ndc.r of principal, and forfeiture of bond. 



may, at any time, surrender their principal, upon payment of all 
costs accruing up to that time. The death of the principal at any 

time before final judgment shall be equivalent to a surrender. 

After forfeiture in the county court and appeal to the superior court, de- 
fendant was tried and acquitted ; the securities wen* discharged except (M to 
costs: 77 Ga. 4. 

There must be a surrender into the custody of the court and its officers, and 
the highest evidence of it is the record: 53 Ga. 167 ; 2/331. 

The act of receiving the surrender is ministerial, and may be performed by 
a deputy: 62 Ga. 267. 

That defendant was surrendered at the beginning of the trial was no ground 
for a new trial : 70 Ga. 767. The law places the principal in the custody of the 
surety, who may, at any time, arrest and deliver him to the sheriff: 82 Ga. 613. 

Payment of costs is a condition to discharge by a surrender of the principal 
between the judgment nisi and final judgment: 62 Ga. 267. 

§986. (4702.) Proceedings to forfeit recognizances . Upon the failure ^mJSi 
to appear of any principal in any bond or recognizance given by a p- Tj ~- 
person charged with a penal offense, or by a prosecutor to prosecute, 
or by a witness to appear and testify, the prosecuting attorney shall 
proceed to forfeit such bond or recognizance in the manner hereto- 
fore practiced in this State. No recognizance called out of its reg- 
ular order on the docket shall be forfeited, for the non-appearance 
of the principal, unless the solicitor-general, or other prosecuting 
officer shall state in his place that the State is ready for trial. 

The law applicable to sureties is strictly construed : 73 Ga. 587 ; 86/387. 

A recognizance must stand or fall by itself, and parol evidence is inadmissi- 
ble to supply a defect : 2 Ga. 363. 

Ambiguous words may be explained by the light of surrounding circum- 
stances: 69 Ga. 351. 

It must show the cause of taking it, and that a crime is charged: 2 Ga. 363. 
If it recites the offense substantially, it is not necessary to designate it by 
name : 32 Ga. 251 ; 61/197 ; 82/613. It may be good although it does not recite 
arrest, examination, conviction on that examination, and an order for bail: 
22 Ga. 417. A failure to state that the offense was committed in this State 
does not per se render it void : 22 Ga. 418. When attested by one who is not 
an officer, it is good as a bond : 2 Ga. 137 ; 4/329. Taken by a sheriff under 
a magistrate's order to imprison until given : 35 Ga. 180. Taken by a magis- 
trate in a different county from that in which the crime was committed, good : 
82 Ga. 570. A voluntary bond executed in New York, forfeited : 63 Ga. 702. 

A condition that the principal shall attend at a certain term of the court 
and from term to term thereafter until discharged by leave of the court, is 
good: 35 Ga. 180. To appear and answer, etc., and not depart without leave, 
binds him to appear until legally discharged or sentenced: 2 Ga. 137; 86/387. 
When only bound to appear at a particular term, an appearance then is com- 
pliance : 65 Ga. 341 ; 73/590 ; 86/387. Bail not bound after sentence : 86 Ga. 386. 
The condition to answer such matters as shall be charged against him concern- 
ing an assault and battery on F., bound him to answer an indictment for the 
murder of F. : 22 Ga. 417 ; 24/337 ; 87/280. To appear and answer a charge and 
abide by the finding of the court, does not bind him to appear before indict- 
ment : 18 Ga. 314 ; 24/422. A bond dated August 3, 1855, for appearance on the 
fourth Monday of August next, is for appearance the fourth Monday of Au- 
gust, 1856: 21 Ga. 153. A bond to answ r er to an indictment for larceny will 
16 



G nan 



§ 987 ARREST AND BAIL AFTER INDICTMENT, ETC. 242 

Ball, surrender of principal, and forfeiture of bond. 

cover larceny from the house, and may be forfeited on an indictment for bur- 
glary and Larceny from the house: 87 Ga. 277. Bonds to answer indictments 
for false swearing and forgery, both relating to the same affidavit, are enforce- 
able: 80 Ga. 174. To appear before a justice to answer a charge of bastardy, 
valid : 45 Ga. 173. Did not state specifically the county in which he was to ap- 
pear, but good : 73 Ga. 547. The onus was on a surety to prove a special plea 
that blanks were tilled after he signed it, and not good if he authorized it: 
73 Ga. 59. A bail-bond executed on Sunday is valid: 62 Ga. 449; 55/244. 
Disability of the principal, known to the bail, will not relieve the latter: 
62 Ga.449. 

A supersedeas bond is to be enforced under this and the next section: 
85 Ga. 561. 

The surety generally has the right to produce his principal when his case is 
ready for trial and called: 73 Ga. 587. After one panel had been discharged 
and all criminal cases continued, bond could not be forfeited although princi- 
pal did not appear at that or the final judgment term : 73 Ga. 587. 

The record must show a judgment of forfeiture and that the principal was 
called and did not appear: 4 Ga. 329; 9/49. 

Can be no forfeiture when the principal is in the custody of the State in the 
penitentiary: 58 Ga. 341; 71/560. Nor after the case has been nol. pros' d: 
56 Ga. 589. Nor after the case has been removed to the United States court: 
73 Ga. 44. Nor after a supersedeas bond has been given : 59 Ga. 882; 

Cobb, 862. §987. (4703.) Judgment against bail. The clerk shall issue a scire 
facias on all forfeited bonds, recognizances, or other obligations, re- 
turnable to the next term of such court, against the principal 
and his sureties, which shall be served by the sheriff or his deputy, 
at least twenty days before the return thereof, or if the party resides 
out of the county or State, scire facias maybe served by publication, 
as in cases of scire facias to revive judgment. And if, at such return 
term, no sufficient cause be shown to the contrary, judgment, on 
motion, shall be entered against such principal and sureties, or such 
ol "hem as have been served. 

The scire facias should issue returnable to the next term after the forfeit- 
ure : 51 Ga. 524. It issues from the county of the indictment : 17 Ga. 437. 
And may run against a party out of the county : 13 Ga. 192. It is amendable : 
13 Ga. 190; 19/597. 

The response should plainly, fully and distinctly set forth the ground of de- 
fense, and should not deal in conclusions of law: 73 Ga. 547. 

The securities have until the case against the principal is called at the next 
term after forfeiture and scire facias to produce his body : 73 Ga. 63. The 
law is satisfied by the appearance of the principal at the return term, before 
the juries are discharged: 75 Ga. 271. And so, if defendant is sentenced after 
forfeiture, and at the same term: 64 Ga. 442. When defendant was absent 
from misapprehension, and appeared after order for final judgment, but be- 
fore it was entered, the order should have been opened : 17 Ga. 462. 

Death of the principal, before final judgment, exonerates the surety: 
32 Ga. 60S. 

If, on return of the scire facias , the principal is too sick to appear, the case 
should be continued: 45 Ga. 9. If, after judgment absolute, and before 
the juries are discharged, the principal is brought in and sureties offer to 
pay costs, and show previous illness of principal caused his absence, the judg- 
ment should be vacated: 45 Ga. 9. 



243 ARREST AND BAIL AFTER [NDICTMENT, ET< ;- 

Process against corporations, and mode of trial. 

After judgment absolute, and during the same term, principal wm acquitted 
and showed that sickness had prevented his appearance ; the judgment should 
have been set aside : 75 Ga. 271 . Whenever, by the act of law, a total impossi- 
bility or temporary impracticability to render a principal has been occasioned, 

the courts will relieve the bail : 34 Ga. 546, 207. 

Surprise, by a misunderstanding of the court, ground for setting the judg- 
ment aside: 17 Ga. 462; 18/275. Conduct of the solicitor-general: 51 Ga. 171. 

The pardon of the principal must be delivered to and accepted by him, to 
be valid as to the sureties : 44 Ga. 379. 

, Sureties discharged by a subsequent arrest under a bench-warrant, on the 
same charge: 51 Ga. 158. A subsequent arrest on another charge does not 
discharge them: 71 Ga. 560; 72/351. 

Duress of principal, no ground for discharge of surety : 9 Ga. 49. 

Sureties may defend by showing that the indictment was invalid: 78 Ga. 
188 ; 24/420 ; 25/235. Cannot object on the ground of misnomer, w r here he ad- 
mits that the indictment is against his principal, nor on the ground that a 
grand juror was not qualified : 59 Ga. 707. 

When all the papers taken together made a sufficient case against the 
surety: 73 Ga. 547. 

Execution of the bond need not be proven unless denied on oath : 63 Ga. 702. 

The bond not a lien until reduced to judgment: 24 Ga. 261. 

County orders not taken in satisfaction of the judgment: 63 Ga. 311. 

The costs of the prosecution not recoverable in this proceeding: 88 Ga. 461. 



ARTICLE 3. 

PROCESS AGAINST CORPORATIONS, AND MODE OF TRIAL. 

§938. Process against corporations, and mode of trial. Whenever an ^fojf 89, 
indictment or special presentment against a corporation doing busi- 
ness in this State is returned, or filed in any court in this State 
having jurisdiction of the offense, the clerk of said court shall 
issue an original and copy notice to the defendant corporation of the 
riling of such indictment or special presentment, which copy notice 
shall be served by a sheriff upon any officer of such corporation to 
be found in his county; and if there be no such officer in his county, 
then upon any agent of such corporation; and the sheriff serving 
such copy notice shall make an entry of such service on the original 
notice, and return the same to the court from which it issued, and 
such service shall be service upon the corporation, and the indict- 
ment or special presentment shall, upon the return of said notice 
executed as provided in this section, stand for trial. On the trial, 
if the defendant corporation fails to appear, or appearing fails to 
plead, the judge shall cause to be entered a plea of not guilty, and 
the trial shall proceed as though the defendant had appeared and 
pleaded. Upon the conviction of any corporation in any such trial, 
there shall be rendered against it a judgment for the fine imposed, 
together with the costs of the prosecution, upon which judgment an 
execution shall issue against the property of the defendant. 



§§980-041 CHANGE OF VENUE. 244 



When and how venue mav be changed. 



CHANGE OF VENUE. 



ARTICLE 1. 

WHEN AND HOW VENUE MAY BE CHANGED. 



Act> 1896 
p. 7" 



§939. Venue, when and how changed. The defendant in any crim- 
inal case in the superior court may move, by petition in writing, 
for a change in venue, whenever, in his judgment, an impartial jury 
cannot be obtained in the county where the crime was committed. 
Upon the motion it shall not be necessary to examine all persons in 
the county where the crime was committed, liable to serve on juries,, 
but the judge shall hear evidence by affidavit or oral testimony, in 
support of or against the motion, and if, from the evidence submit- 
ted, the court shall be satisfied that an impartial jury cannot be 
obtained to try the case, the judge shall transfer it to any county 
that may be agreed upon by the solicitor-general and the defendant 
or his counsel, and be tried in the county agreed upon. If a county 
is not thus agreed upon, the judge shall select such county as, in his 
judgment, will afford a fair and impartial jury to try the case, and 
have it transferred accordingly. 

Constitutional: 85 Ga. 70. The prescribed mode of proceeding must be 
followed : 54 Ga. 371 ; 80/785 ; 85/70. 

A n Ct 7i 18&5 ' §940. Clerk to transmit papers , etc . ; subpoenas for witnesses. When- 
ever a change of venue is had, the clerk of the court of the county 
from which the case has been transferred shall send to the superior 
court to which the case has been transferred a transcript of the order 
for the change of venue, the evidence before the court of inquiry, a 
list of all the witnesses subpoenaed in the case, and all other papers 
connected with the case. The clerk of the court of the county se- 
lected to try the case shall issue subpoenas to said witnesses and such 
others as may be applied for by either party. 

Aetoim, §941. Subsequent change of venue. If it should be made to appear 
to the judge of the superior court presiding in the county to which 
a case has been transferred, that a fair and impartial jury cannot be 
had therein, he shall, in the manner prescribed in the first section 
of this Article, transfer the case to some other county where a fair 
and imfjartial jury can be had to try it. 



245 CALL OF THE DOCKET TO SENTENCE. M2-94B 

Call of the docket. Arraignment. 



FROM THE CALL OF THE DOCKET TO SENTENCE. 



ARTICLE 1. 

CALL OF THE DOCKET. 

§942. (4710.) Docket, how called. The cases on the criminal docket A ™J£?' Z ' 
shall be called in the order in which they stand on the docket, unless 14 °- 
the defendant be in jail, or otherwise in the sound discretion of the 
court. 

This is directory, not mandatory: 78 Ga. 111. 



ARTICLE 2. 



ARRAIGNMENT. 



§943. (4642. ) Prisoner not brought in in fetters. No prisoner shall be Co ^. 835. 
brought into court, for arraignment or trial, tied, bound, or fettered, 
unless the court shall deem it necessary, during his arraignment or 
trial. 

§944. (4633, 4642.) When prisoner may be placed in bar-dock. A ^' 834 ' 
person indicted for an offense which may, on conviction, subject 
him to death, or imprisonment in the penitentiary for three years 
or more, may be put for his arraignment in the bar-dock, or 
other place set apart in the court-room for the arraignment of 
prisoners. If the health of the prisoner, or other circumstances, 
should render it more convenient to him and his counsel that he 
should not be placed for his arraignment, or during his trial, within 
the bar-dock, or other place assigned in the court-room for prisoners, 
the court may grant the indulgence of removing him to any place in 
the court-room, or contiguous to it, requested by him or his counsel. 
A person indicted for an offense which, on conviction, will not subject 
him to death or imprisonment in the penitentiary for the term of 
three years, shall not be put for his arraignment in the bar-dock, or 
other place set apart in the court-room for the arraignment of pris- 
oners. 

§945. (4634, 4635.) Copy of accusation, and list of witnesses. Every c jfJifV , se 
person charged with an offense against the laws of this State shall ^g 1 ^' 
be furnished, on demand, previous to his arraignment, with a copy 



§§946-949 CALL OF THE DOCKET TO SENTENCE. 



246 



Arraignment. 



of the Recusation, and a list of the witnesses on whose testimony the 
charge against him is founded. 

This applies to all grades of offenses: 50 Ga. 585. 

The words "on whose testimony the charge against him is founded" are 
equivalent to the words " the witnesses who gave testimony before the grand 
jury." A witness whose name was not on the list is not rendered incompetent 
to testify: 72 Ga. 269. 

Cobb. 834. §946. (4636.) Form of arraignment and plea of "guilty." Upon the 
arraignment of a prisoner, the indictment shall be read to him, and 

« 

he shall be required to answer whether he is guilty or not guilty of 
the offense charged in the indictment, which answer or plea shall be 
made orally by the prisoner, or his counsel. And if he shall plead 
"guilty," such plea shall be immediately recorded on the minutes of 
the court by the clerk, together with the arraignment; and the court 
shall pronounce upon such prisoner the judgment of the law, in the 
same manner as if he had been convicted of the offense by the verdict 
of a jury; but, at any time before judgment is pronounced, the 
prisoner may withdraw the plea of "guilty," and plead "not guilty," 
and such former plea shall not be given in evidence against him on 
his trial. 

One object of the arraignment is to afford an opportunity to object to the 
indictment : 87 Ga. 524. 

Ordinary form of entering it, affords no evidence, except by implication, of 
prisoner's presence: 60 Ga. 432. 

Not necessary to rearraign in case of new trial: 49 Ga. 104. Nor mis- 
trial : 58 Ga. 35. 

Court may ask whether arraignment is waived : 22 Ga. 212. 

By inadvertence there was no arraignment, and no issue, and a nolle 
prosequi was entered : 34 Ga. 323. 



Cobb, 834. 



Cobb, 885. 



Cobb. 886. 



§947. (4638.) Standing mute or pleading u not guilty " If the pris- 
oner, upon being arraigned, shall plead " not guilty," or shall stand 
mute, the clerk shall immediately record upon the minutes of the 
court the plea of "not guilty," together with the arraignment, and 
such arraignment and plea shall constitute the issue between the 
prisoner and the State. 

§948. (4640.) Issue may be recorded afterward. If the clerk shall 
fail or neglect to record the arraignment and plea of the prisoner at 
the time the same is made, it may and shall be done at any time 
afterward, by order of the court, and this shall cure the error or 
omission of the clerk. 

§949. (4641.) To be entered on the indictment. The arraignment 
and plea or answer of the prisoner shall be entered on the indict- 
ment by the solicitor-general, or other person acting as prosecuting 
officer on the part of the State. 

Mistake in entering corrected : 20 Ga. 674. 



247 CALL OF THE DOCKET TO SENTENCE. |950 



DcmiirrorH and Hpw,ial pW;aH to U; in writing. 



Waiver of arraignment and the entry of it, together with a plea of not 
guilty, by the solicitor-general upon the indictment, sufficiently forms the 
issue : 95 Ga. 222. 



ARTICLE 3. 



DEMURRERS AND SPECIAL PLEAS TO BE IN WRITING. 

§950. (4639.) Demurrers and special pleas to be in writing. If the ^^' 834 " 
prisoner, upon being arraigned, shall demur to the indictment, or 
plead to the jurisdiction of the court, or in abatement, or any spe- 
cial plea in bar, the demurrer or plea shall be made in writing; and 
if such demurrer or plea shall be decided against the prisoner, he 
may, nevertheless, plead and rely on the general issue of "not 
guilty." 

A demurrer to the indictment should have been in writing, and shown to be 
so, on the arraignment : 70 Ga. 718 ; 22/499 ; 87/524. 

All exceptions for form, or matters that may arise by special demurrer, 
plea in abatement or bar, must be made in writing preliminary to the trial, 
and if not made at the proper time are held to be waived in contemplation of 
law: 41 Ga. 484; 93/47; 24/38; 34/108; 37/51; 70/718; 22/499, 546; 69/747. A 
motion to quash is a demurrer : 22 Ga. 499, 546 ; 29/616. After pleading 
"not guilty," defendant cannot move to quash for matter of form : 47 Ga. 523. 

If defendant insists on it, the indictment should be good in form as well as 
substance, but if he neglects matters of form until after verdict, he is then too 
late: 87 Ga. 524; 95/479. 

An indictment is not demurrable for matter dehors the pleading and the 
record : 64 Ga. 344. 

A special demurrer is the only way of reaching a negative pregnant: 
15 Ga. 210. 

That grand jurors were not regularly summoned and impaneled is matter for 
plea, not demurrer: 60 Ga. 88. 

The statement that the grand jurors were "sworn, chosen and selected " is 
not ground for quashing: 65 Ga. 731. Nor is the use of a plural instead of a 
singular pronoun : 88 Ga. 784. Nor that the prosecutor on a former indict- 
ment was not the same as on the pending indictment : 87 Ga. 668. Nor when 
the name of an excused juror appeared in the indictment: 9 Ga. 210. 

When defendant pleaded in the city court to a transferred indictment, that 
the grand jurors were not qualified and sworn, the irregularities should have 
been corrected in the superior court: 63 Ga. 641. 

" Georgia, Liberty county," was enough to show of what county the jurors 
were: 76 Ga. 96. 

That the ordinary acted as solicitor pro tern, in drawing the indictment and 
was employed as counsel for the prosecution, not good in abatement : 69 Ga. 12. 

A demurrer to an entire indictment which contained one good and one bad 
count, overruled : 79 Ga. 344. 

Error to dismiss a plea which alleges that the names of three of the grand 
jurors were not in the box, nor on the lists, and that three persons acted on 
the jury without taking any oath: 63 Ga. 641. 



§§951-954 CALL OF THE DOCKET TO SENTENCE. 248 



Pleas of insanity, and misnomer. 



ARTICLE 4. 

PLEAS OF INSANITY, AND MISNOMER. 

§951. (4299.) Plea of insanity, how tried. Whenever the plea of 
insanity is filed, it shall be the duty of the court to cause the issue 
on that plea to be first tried by a special jury, and if found to be 
true, the court shall order the defendant to be delivered to the su- 
perintendent of the asylum, there to remain until discharged in the 
manner prescribed by law. 

The object of this plea is to prevent a trial on the merits, and it must allege 
insanity at the time of the trial: 38 Ga. 491 ; 75/615. 

The proper practice is to file a special plea to that effect, and try it before a 
special jury : 80 Ga. 450. 

When defendant goes to trial on this plea and the general issue, the jury 
may find "guilty" or "not guilty" : 42 Ga. 9. 

The defence of insanity at the time the deed was done, must be made under 
the plea of not "guilty" : 75 Ga. 614. 

§952. (1374.) Criminals acquitted, how dealt with. When a person 
who has been acquitted of a capital crime on the ground of insanity, 
is committed to the asylum, he shall not be discharged thence, ex- 
cept by special act of the legislature. If the crime is not capital, 
he shall be discharged by warrant or order from the Governor. If 
sentence is suspended on the ground of insanity, upon restoration to 
sanity the superintendent shall certify the fact to the presiding 
judge of the court where he was convicted. 

Cobb.aio. §953. (4673.) Lunacy and insanity . No lunatic, or person afflicted 
p- 12 ' ; - with insanity, shall be tried, or put upon his trial, for any offense, 
during the time he is afflicted with such lunacy or insanity, which 
shall be tried in the manner hereinbefore pointed out where the plea 
of insanity at the time of trial is filed, and, on being found true, 
the prisoner shall be disposed of in like manner. 

This and section 951 provide for special pleas of insanity at the time of the 
trial : 75 Ga. 625. 

WGa. 224. §054. Misnomer, plea of. A plea of misnomer should state the 
true name of the accused, that he had never been known by any 
other name than that, and that he was not known and called by the 
unit)'' under which he was indicted. 

It should be filed on arraignment: 92 Ga. 14; and the finding should be di- 
rectly excepted to: 62 Ga. 395; 92/453. 

That defendant was indicted by the name of Lizzie Jordan when her name 
was Eliza A.Jordan and she was known by no other name, was good: 60 
Ga. 050. 

This plea was fatally defective in not alleging that defendant had never 
been known or called by any other name: 69 Ga. 224; 95/326. 



249 CALL OF THE DOCKET TO SENTENCE. i '.<:,:, 



Exception! as to form and DlOtiotll m arroHt. 



ARTICLE 5. 

EXCEPTIONS A8 TO FORM AND MOTIONS IN ARREST. 

§955. (4629.) Exceptions to form and motions in arrest of judgment. 0oW> » ) 
All exceptions which go merely to the form of an indictment shall 
be made before trial; and no motion in arrest of judgment shall be 
sustained for any matter not affecting the real merits of the offense 
charged in the indictment. 

Distinction between exceptions before trial and a motion in arrest of judg- 
ment: 87 Ga. 516; 95/479. 

Matters not affecting the real merits of an indictment are not good in arrest 
of judgment: 19 Ga. 1. 

A motion in arrest of judgment can be sustained only upon such cause as is 
apparent upon the face of the record : 9 Ga. 58 ; 34/108 ; 29/522. 

If the facts insisted on for arresting the judgment do not appear of record, 
the presumption is they do not exist: 42 Ga. 203. A verdict may be entered 
at next term by an order nunc pro tunc: 3 Ga. 18. Aliunde testimony to attack 
recital in indictment, not admissible: 9 Ga. 58. 

The judgment will not be arrested where the allegations are sufficient in 
law to authorize a conviction and judgment : 33 Ga. 98. 

That the name of the county for which the jurors were sworn was not filled 
in the blank, not sufficient : 34 Ga. 107. Blank left for defendant's name instead 
of renaming him, not good: 60 Ga. 657; 67/723. Two blanks filled in pencil 
by the solicitor after the bill was found by the grand jury, and the penciling 
erased by order of court after the jury had been impaneled : 61 Ga. 635. 

Judicial notice will be taken of the usual abbreviations of christian names : 
11 Ga. 227 ; 7/3. Three grand jurors' names set out by initials of the christian 
names : 18 Ga. 460 ; 59/859 ; 63/318. The name of a prosecutor on the indict- 
ment is matter of form : 59 Ga. 859. 

Objection that the indorsement "true bill" was not signed by one of the 
jury as foreman, overruled: 17 Ga. 498; 76/40; 93/51. Signed as "foreman 
pro tern.'''' : 93 Ga. 47. That the indorsement of true bill was not on an estab- 
lished copy, not good : 76 Ga. 39. "True bill" applies to both defendants in 
the indictment : 55 Ga. 598. 

If "in the name and behalf of the citizens of Georgia" be omitted, it is bad 
on demurrer, but not good on motion in arrest of judgment : 37 Ga. 80. So also 
as to "malice aforesaid" in lieu of "malice aforethought" : 95 Ga. 340. 

The residence of defendant is not a material allegation: 7 Ga. 3; 38/491. 

Where, on the face of the indictment, the offense is barred, and none of the 
exceptions to prevent the running of the statute are mentioned, the judgment 
should be arrested : 4 Ga. 335 ; 54/55. 

One bad count no ground, verdict presumed to have been found upon the 
good count : 40 Ga. 529 ; 10/48. Where two felonies — burglary and larceny 
from the house — were charged in one count, and a verdict for the latter 
offense, judgment not arrested: 60 Ga. 88; 87/524. Objection that the indict- 
ment was double, overruled: 55 Ga. 598. That the indictment was not read to 
the jury, not good : 18 Ga. 384; 22/83. One of several jointly indicted, tried 
separately and verdict finding defendant guilty, not good ground : 76 Ga. 613. 



§§956, 957 CALL OF THE DOCKET TO SENTENCE. 250 

Settlement of eases. Nolle prosequi. 

Trial in city court on accusation without an indictment: 74 Ga. 842; 81/144. 
Agreement as to changing accusation: 77 Ga. 448. If defendant had a right, 
in a city court, to be tried by the court, he waived it: 90 Ga. 459. 

Refusal to arrest a judgment, not a ground for new trial: 64 Ga. 61; 84/258. 



ARTICLE 6. 



SETTLEMENT OF CASES. 



un^isro 4 ' §956. (4706.) Settlement of cases. All cases of indictments, or 
P- 4 '"- special presentments, shall be submitted to and passed upon by the 
jury, under the direction of the presiding judge, unless there is a 
settlement thereof between the prosecutor and defendant, which 
settlement shall be good and valid only by the approval and order 
of the court on examination into the merits of the case. 

This applies to cases wiiere there is an indictment or presentment : 53 Ga. 
353. 

Under the Act before it was amended, assault and battery, obstructing legal 
process, and hog-stealing, were offenses that could not be settled without the 
consent of the court : 27 Ga. 197 ; 41/507 ; 15/419. 



ARTICLE 7. 

NOLLE PROSEQUI. 

Cobb, 836. 8957. (4649.) Nolle prosequi, when and how allowed. After an ex- 

Acts 1870 

p. 422. amination of the case in open court, and before it has been submit- 

1877. p. 108. _ _ i -i. ., i 77 . . n 

ted to the jury, the solicitor-general may enter a nolle prosequi with 
the consent of the court. After the case has been submitted to the 
jury, a nolle prosequi shall not be entered except by the consent of 
the defendant. 

These provisions are directory and for the protection of the public: 
70 Ga. 134. 

It must be entered in the presence and with the concurrence of the judge, 
and entered on the minutes: 41 Ga. 507; 9/306. 

When a nolle was entered, without prisoner's consent, after issue joined 
and the jury sworn, it was a bar to a subsequent indictment: 85 Ga. 570; 
76/551 ; 3/53 ; 33/331 ; 55/626 ; 70/134. 

A case is submitted when a plea of not guilty is filed, and the jury im- 
paneled and sworn ; 2 Ga. 60. 

If there is no issue, it may be entered after the jurors are sworn : 34 Ga. 323. 

It is no defense that a previous good indictment was nol. pros'd without 
prisoner's consent: 53 Ga. 605. 

The consent of the court is conclusive upon the validity of a nolle which the 
court allowed before accused was put on trial; 90 Ga. 347. 



251 CALL OF THE DOCKET TO SENTENCE. 

Demand for trial. 



ARTICLE 8. 



DEMAND FOR TRIAL. 

§958. (4648.) Demand for trial by accused. Any person against 28?i«?' 
whom a true bill of indictment is found, for an offense not affecting ^ m - 
his life, may demand a trial at the term when the indictment is 
found; or at the next succeeding term thereafter, or at any subse- 
quent term, by special permission of the court, which demand shall 
be placed upon the minutes of the court; and if such person shall 
not be tried at the term when the demand is made, or at the next 
succeeding term thereafter, and at both terms there were juries im- 
paneled and qualified to try him, he shall be absolutely discharged 
and acquitted of the offense charged in the indictment. 

This was to give effect to the constitutional guaranty of a speedy trial: 
9 Ga. 307. 

There must be two impaneled qualified juries, one when the demand is 
made, and the other at the succeeding term: 65 Ga. 516; 57/154; 63/165. 

The demand must be placed upon the minutes, and if refused, the remedy 
is by writ of error and not by an order nunc, pro tunc: 19 Ga. 586; 28/64; 
63/165. It mast be made before the jury is discharged : 18 Ga. 532 ; 25/135. 

There is no exception — trial or acquittal are the alternatives : 9 Ga. 307; 
10/95; 15/286; 85/716. That the court did not have time for the trial is no 
exception : 10 Ga. 95. 

If defendant is tried at the same term when the demand is made or the 
next succeeding term for the same offense, it is all the right given to him: 
76 Ga. 551. 

Where two were jointly indicted and one continued, the other could have 
his demand entered : 20 Ga. 666. 

A mistrial must be by consent, or the result of inevitable accident : 25 Ga. 
667 ; 54/24 ; 85/716. That a mistrial was declared, without consent, at the next 
term after the demand, no cause for a discharge : 54 Ga. 24; 85/716. 

Indictment found October term, 1887; demand April term, 1888; conviction 
and new trial October term, 1888; motion for discharge denied April term, 
1889— if not tried at that term, entitled to it: 84 Ga. 44; 85/716. When 
defendant, at the second term, fails to appear, it is too late to apply for an 
order of discharge after the juries have been discharged: 51 Ga. 192. Defend- 
ant does not lose his right by a forfeiture of his bond : 21 Ga. 148. 

Defendant waives the demand if he consents to passing the case until a 
subsequent term : 89 Ga. 482. 

An offense nominally the same, but substantially different, not covered by 
the demand: 85 Ga. 713. 

The better practice is for the order of discharge to recite that at the term a 
jury was impaneled and qualified to try the case: 6 Ga. 491. A judgment 
denying the discharge is conclusive until set aside: 85 Ga. 713. The discharge 
is a bar to a second prosecution for the same criminal acts : 38 Ga. 187 ; 85/717. 



§§959-061 CALL OF THE DOCKET TO SENTENCE. 252 

Announcement. Continuances. 

ARTICLE 9. 

ANNOUNCEMENT. 

A pp S i3?" 3 ' §9f>9« (4710.) Announcement of ready or not ready for trial. The 

14 °- State shall be required in every case to announce ready or not ready 

for trial, except in those cases where the defendant is entitled by 

law to demand a trial, before the defendant shall be called on to make 

such announcement. 



ARTICLE 10. 



CONTINUANCES. 



Act [ 3 ^ 862 " 3 ' §960. (4710.) When showing for continuance is required of the State. 
In all cases in which the defendant cannot, according to law, demand 
a trial, a continuance shall not be granted to the State, except upon 
a reasonable showing therefor. 
Cobb, 835- §961. (4647.) Cases, when tried and when continued. Every person 
Acts 1893. against whom a bill of indictment is found shall be tried at the term 
of the court at which the indictment is found, unless the absence of 
a material witness, or the principles of justice, should require a 
postponement of the trial, and then the court shall allow a post- 
ponement until the next term of the court; and the court shall have 
power to allow the continuance of criminal causes from term to term, 
as often as the principles of justice may require, upon sufficient 
cause shown on oath: Provided, however, that no continuance shall 
be granted in any of the courts which have a continuous session for 
thirty days or more, over the objection of the adverse party, where 
the cause for the same can be obviated by a postponement to a later 
day during the term, and the presiding judge, whenever a motion 
and a proper showing for a continuance is made by either party, at 
any time, shall set the case down for a later day during the same 
t^rm, if it shall be practicable thereby to avoid the continuance. 

Where the principles of justice require it, there should be a postponement: 
5 Ga. 52; 20/601; 32/581; 38/50; 65/506. 

Public excitement alone is not a sufficient ground for continuance: 85 Ga. 
81; 24/207; 32/581; 41/527; 48/116; 54/371; 60/257; 64/403; 80/467; 93/307. 

Except under extraordinary circumstances: 27 Ga. 287 ; 32/582. Added to 
other causes it may turn the scale in favor of the motion : 32 Ga. 581. Excite- 
ment is on the same plane of discretion as other grounds: 69 Ga. 26. 

Sickness of defendant: 49 Ga. 210; 40/530. Eecent offense: 9 Ga. 495; 
29/271. Eecent finding of the bill, no cause: 26 Ga. 276; 14/8; 53/149. 

Counsel should have a reasonable time to prepare the defense : 65 Ga. 506; 
76/288; 79/447. 



258 CALL OF THE DOCKET TO SENTENCE. §962 

Continuance 

Should have been granted for absent counsel, recent indictment, witne- 
in another county and no power to subpoena them before indictment: 71 Ga. 
481. 

§902. (8522.) Continuance for absence of witnesses. In all applica- 
tions for continuances upon the ground of the absence of a witness, 
it must be shown to the court that the witness is absent; that he 
has been subpoenaed; that he resides in the county where- the case La 
pending; that his testimony is material; that the witness is not 
absent by the permission, directly or indirectly, of the applicant; 
that he expects he will be able to procure the testimony of the wit- 
ness at the next term of the court; and that the application is not 
made for the purpose of delay, but to enable the party to procure 
the testimony of the absent witness; and must state the facts expected 
to be proved by the witness. 

The affidavit should be full, satisfactory and direct as to the material allega- 
tions necessary : 10 Ga. 86 ; 41/215 ; 55/47 ; 61/481 ; 72/98 ; 74/836 ; 76/696 ; 
77/247; 78/347; 95/467. And that there is no other witness present by whom 
he can prove the same facts: 72 Ga. 98; 95/469. 

The accused must make the affidavit himself, especially when no reason is 
shown why he could not do so. He alone can testify as to whether the witness 
is absent by his procurement or consent, or that the motion is not made for 
the purpose of delay only : 80 Ga. 450 ; 54/660. 

Accused should show that the absent person is in fact a witness to some 
matter material to his defense, and if he knows it from information only, 
he ought to submit the affidavit of his informant: 24 Ga. 297. The judge 
should not disbelieve the oath of defendant as to what the witness will swear, 
except upon the strongest sort of evidence, if at all: 67 Ga. 768. Refused for 
a witness who stated to the person who served the subpoena that she knew 
nothing about the matter : 74 Ga. 404. 

It must appear that the witness has been subpoenaed. Information as to the 
fact will not suffice— it must be verified : 18 Ga. 383 ; 49/103 ; 69/737. Defend- 
ant is competent to prove service of the subpoena: 40 Ga. 529. Where a sub- 
poena issued for a material witness who resided within the jurisdiction, but 
was temporarily absent in another State, motion should have been granted : 
84 Ga. 193. The general rule that a case should not be continued for the 
absence of a witness beyond the jurisdiction, is not so unbending as to prevent 
the judge from exercising his discretion : 65 Ga. 332 ; 85/82 ; 58/491 ; 60/257 ; 
65/658; 70/766; 84/488. 

The affidavit must show that the witness is not absent by the procurement 
or consent of defendant, and that he expects to procure the attendance of the 
witness at the next term : 78 Ga. 87. 

What the accused expects to prove by the witness must be shown : 74 Ga. 836. 

It must be shown that the testimony is material and that the accused can- 
not go safely to trial without it: 26 Ga. 276, 493; 38/505; 41/215; 46/209; 
68/287; 81/332. That it is cumulative forms no exception: 23 Ga. 190. A 
continuance in a capital case, on account of testimony material for the 
prisoner's defense, should not be refused : 30 Ga. 10. 

Absence of an impeaching witness: 7 Ga. 2; 9/373. Of a witness to prove 
an alibi: 14 Ga. 22; 17/439; 23/190. 

It must also appear that the application is not for delay only: 87 Ga. 622; 
95/498. 



§§968, 964 CALL OF THE. DOCKET TO SENTENCE. 254 



Continuances. 



Affidavit of the accused cannot be contradicted by cross-examination or 
aliunde; otherwise if the application is made orally: 9 Ga. 121 ; 80/450. A 
question may be asked prisoner which is intended merely to enable the court 
to procure the attendance of the witness: 24 Ga. 297. If any other person 
swears to the grounds, the State may cross-examine him: 80 Ga, 453. 

The private knowledge of the court not to be considered: 9 Ga. 373. The 
court may consider what has passed before it during the progress of the cause, 
to determine the merits of the application : 26 Ga, 493. A complete showing; 
denied because defendant was dallying with the court: 78 Ga. 663. 

It is error to refuse to continue on a proper showing made: 44 Ga, 449; 
73/804. 

The opinion the court may entertain as to the guilt of the accused, cannot 
be made the ground of depriving him of a clear legal right: 14 Ga, 22. 

New trial will not be granted when the absent witnesses are brought in : 
33 Ga. 98; 22/212; 18/567; 66/508; 47/589. Where defendant declined the 
offer of an officer to bring in the witness : 52 Ga. 290. 

When accused discharges a witness, he cannot continue at the same term 
for that witness: 83 Ga. 166. 

All the grounds must be urged and insisted upon at once : 22 Ga. 212 ; 38/491 ; 
83/166. A second showing should disclose the occurrence of a cause not exist- 
ing when the first showing was made, or other cause standing on the same 
footing of reason and justice : 33 Ga. 207 ; 54/374. 

A p Ct 52 1SJ34, §^63. (3523.) Continuance refused when the facts are admitted. No 
continuance shall be allowed in any court on account of the absence 
of a witness, or for the purpose of procuring testimony, when the op- 
posite party is willing to admit and does not contest the truth of 
the facts expected to be proved, and the court shall order such ad- 
missions to be reduced to writing. 

Statement reduced to writing, but not sworn to : 18 Ga. 318. 
The fact must be admitted to be true : 42 Ga. 50 ; 43/581 ; 17/439. And 
should be put in evidence to get the benefit of it : 29 Ga. 681 ; 34/353. 

§964. (3525.) Continuance for absence or illness of counsel. The illness 
or absence, from providential cause, of counsel, where there is but 
one, or of the leading counsel where there are more than one, shall be 
a sufficient ground for a continuance, provided the party making the 
application will swear that he cannot go safely to trial without the 
services of such absent counsel, and that he expects his services at 
the next term, and that said application is not made for delay only. 

This ground is not favored : 10 Ga, 85 ; 18/383 ; 38/505. And a strict showing 
is required: 71 Ga. 276. 

Mere absence is not sufficient: 66 Ga. 344; 38/491. Sickness must be shown: 
45 Ga. 57. Court determines who is leading: 78 Ga. 74. Not shown that the 
absent attorney was the leading counsel, nor that the application was not for 
delay: 78 Ga. 71. One sick, four present, and absent one not shown to be 
leading: 94 Ga. 589. One of four and he not leading, sick: 70 Ga. 766. Ab- 
sent by leave of the court, good cause. 36 Ga. 54. Counsel misled by the 
court, and another absent from providential cause: 44 Ga. 588; 45/538. Coun- 
sel on whom defendant relied were absent — one by leave, and the other sick ; 
motion should have been granted, although the court may have had strong 
reason to believe the application was for delay: 56 Ga. 406. Absent as a 
member of the legislature, not good cause: 31 Ga. 35. 



255 CALL OF THE DOCKET TO SENTENCE. 966-000 

Trial of joint offenders. 



This ground within the discretion of the court under the special tacts of 

each case: 45 Ga. 72; 92/8. 

§905. (3528.) Diligence required. The party making an applica- 
tion for a continuance must show that he has used due diligence. 

Defendant should be guilty of no laches: 10 (la. 85 ; 32/584 ; 21/221 ; 38/491 ; 
59/83. 

The rule exacted in this case perhaps too strict : 54 Ga. 660. 

Not diligence to put subpoena in hands of sheriff on Friday before court on 
Monday, for witness in adjoining county: 89 Ga. 391. 

Being in prison does not excuse want of diligence: 26 Ga. 276; 38/491. 

§966. (3531.) Discretion of the court. All applications for contin- 
uances are addressed to the sound legal discretion of the court, and 
if not expressly provided for, shall be granted or refused, as the ends 
of justice may require. And in all civil and criminal cases in the 
courts of this State, the presiding judges may, in their discretion, 
admit a counter-showing to a motion for a continuance, and, after 
a hearing, may decide whether the motion shall prevail. 

Continuances after the first term rest in the sound discretion of the court ; 
even at the first term all discretion is not denied : 72 Ga. 98 ; 49/210. 

The discretion must be within the law, and must spring out of and be 
bounded by what transpires in the case : 9 Ga. 376. 

There must be a plain and palpable abuse of the discretion of the court, be- 
fore the Supreme Court will interfere : 1 Ga. 213 ; 10/86 ; 14/6 ; 38/507 ; 46/209 ; 
47/598; 49/210; 58/608; 59/189; 64/374; 65/94,658; 69/11; 70/766. 

Discretion abused: 5Ga. 48; 14/25; 65/332; 88/784; 84/82; 95/484. Not 
abused : 89 Ga. 803 ; 90/347 ; 54/660 ; 62/194. Cause suspended and witnesses 
sent for: 7 Ga. 373. 

A counter-showing may be made, wmether the motion be in writing or by 
parol. It may contradict the party moving for a continuance, but not the ab- 
sent witness ; it may go to what he would swear if present : 69 Ga. 11 ; 65/94, 
338; 62/362; 84/195; 95/330. 

The cross-examination of the witnesses making affidavits as a counter-show- 
ing is limited to the subject-matter of the affidavits: 69 Ga. 11. 

§967. (4693.) Continuance by one defendant. The continuance of a • A f t | 9 1S58, 
case by one of several defendants indicted jointly shall in no case 
operate as a continuance as to the other defendants objecting thereto. 

§968. Judge to enter and announce continuance. When a case is 'p 01 ^ 1590, 
continued, the judge shall enter the date opposite the case on his 
docket and make public announcement in open court of the contin- 
uance. 



ARTICLE 11 



TRIAL OF JOINT OFFENDERS, 



§969. (4692.) Trial of joint offenders. When two or more persons Act^MSM 

shall be jointly indicted, they shall be separately tried, if they or -J^p 2 *- u 
either of them elect so to sever; and when defendants are separately 1S7S ~ 9,p - 59 - 



§§970. 071 CALL OF THE DOCKET TO SENTENCE. 256 

Impaneling the jury. 

tried, they shall be competent to testify for or against each other. 
It the offense be such as requires the joint action and concurrence 
of two or more persons, the acquittal or conviction of one shall not 
operate as the acquittal or conviction of any of the others not tried, 
but they shall be subject to be tried in the same manner. The State 
also shall have the right of severance on the trial. 

A joint offender cannot be indicted alone, nor can there be a conviction for 
a joint offense on an indictment which does not charge it: 84 Ga. 680. 

It is too late to demand a severance after electing to be tried jointly and 
evidence has been heard : 74 Ga. 431. Severance may be ordered at the instance 
of the State : 58 Ga. 577. 

When jointly indicted defendants sever, the State may elect which shall be 
tried first : 7 Ga. 2. The necessity to elect exists only when one or more 
defendant is pressing for a trial at the same time: 20 Ga. 667. 

Issue on a special plea did not amount to an election : 7 Ga. 2. 

The one not on trial is a competent witness : 1 Ga. 610. On a joint trial all 
testimony as to either is admissible: 70 Ga. 725. On a joint trial, where the 
right to testify for each other was not reserved, the wife of one could not tes- 
tify for the other: 74 Ga. 431. Where they agree to try jointly with the right 
to testify for each other, each may be impeached, and an indictment for lar- 
ceny and a plea of guilty are admissible: 71 Ga. 864. Impeaching testimony 
used solely for that purpose. 79 Ga. 87. 

Acquittal of one joint offender does not operate as an acquittal of the other: 
51 Ga. 375. 

New trial may be granted as to one, and the verdict stand as to the others: 
51 Ga. 164. 



ARTICLE 12. 



IMPANELING THE JURY. 



Act | j J ) s55 " f5, §970. (4678.) Impaneling the jury. When any person stands in- 
dicted for a felony, a jury shall be impaneled as prescribed in sec- 
tions 858 and 859 of this Code. 

It is not error for the judge to order the sheriff to summon a number of citi- 
zens to attend as tales jurors : 14 Ga. 43 ; 27/694. 

A complete panel of men, all present, were what prisoner was entitled to ; 
he had no right to any particular persons: 29 Ga. 470. 

^yf 56 " 6 ' §971. (4679.) Putting panel on prisoner. The clerk shall make 
out three lists of each panel, and furnish one to the prosecuting 
counsel, and one to the counsel for the defense. The clerk shall 
then call over the panel, and it shall be immediately put upon the 
accused. 

This proceeding cannot lawfully be omitted, when, in due time, prisoner's 
counsel gives fair notice that he waives nothing: 62 Ga. 731. If he did not 
decline to waive and acquiesced in its omission, he waived it: 88 Ga. 731; 
72/269 ; 31/418. The panel may be put on the prisoner before and after 
arraignment: 17 Ga. 130. "Barry" may be put on the prisoner, although he is 



257 CALL OF THE DOCKET TO SENTENCE. 972, 978 



Impaneling the jury. 



generally known, and is on the list, as "Berry": 58Ga. 572. The record beii 

silent, it will be presumed that the panel was put upon the prisoner: 73 Ga. 567. 
[f the panel does not number forty-eight, the objection should be made 

when put upon the prisoner: 22 Ga. 546; 27/287; OS/005. It is too late after 
trial to object to a correction of the lists, directed by the court in selecting the 
jury : 19 Ga. 192. 

§972. (4080.) Challenge to the array. The accused may, in writing, ^g] 

challenge the array for any cause going to show that it was not 
fairly or properly impaneled, or ought not to be put upon him, the 
sufficiency of which challenge the court shall determine at once. If 
sustained, a new panel shall be ordered; if not sustained, the- selec- 
tion of jurors shall proceed. 

A challenge to the array to be on some ground that taints the whole : 47 Ga. 
598; 65/475; 80/785. 

Trial of the challenge : 14 Ga. 26. 

Sheriff maybe present by deputy: 17 Ga. 497. Under-sheriff may appoint 
bailiffs to summon tales jurors : 17 Ga. 498 ; 45/279. If the sheriff or deputy 
be disqualified, the court may order any disinterested person to summon a 
jury : 29 Ga. 105. 

The court determines the number of which a panel of tales jurors shall 
consist and the number of panels which may at the same time be summoned : 
17 Ga. 498. 

When a challenge was sustained on the ground that the sheriff was the 
prosecutor, none of the jurors were competent: 29 Ga. 107. The judge purged 
the regularly drawn jurors for the term, by the application of an improper 
test as to uprightness and intelligence : 48 Ga. 353. Error for judge to draw 
names from grand-jury box and direct the sheriff to summon the persons and 
put them, as tales jurors, on prisoner: 1 Ga. 631; 4/147. 

That the tales jurors should be qualified, is the only restriction on the 
sheriff in selecting: 64 Ga. 375 ; 17/498. Grand jurors qualified as tales jurors : 
4 Ga. 136 ; 20/60. Array not disqualified by hearing the evidence alone, without 
forming and expressing an opinion : 82 Ga. 535. Nor by hearing part of the 
evidence on motion to continue : 90 Ga. 616. 

Part of the array were talesmen who had been summoned before a mistrial, 
and not put upon the prisoner: 85 Ga. 71. 

That the judge drew talesmen from the grand- jury box, not good cause : 
85 Ga. 71. Nor was the fact that some of the array had found another person 
guilty, growing out of the same transaction : 92 Ga. 459. 

No proof in support of the ground that other names should have been in the 
jury-box: 49 Ga. 211. Not affirmatively shown that the jurors were not prop- 
erly selected and summoned: 42 Ga. 308. Mistake in one name: 68 Ga. 687. 
Mistake in middle name : 8 Ga. 173. Juror sworn, case nol. pros'd, new bill. 
juror may be again put upon the prisoner: 50 Ga. 556. 

§973. (4681.) Challenges for cause. On calling each juror, he Act .f 3 J S55 " ;! - 
shall be presented to the accused in such a manner that he can dis- 
tinctly see him, and then the State, or the accused, may make either 
of the following objections, viz.: 

1. That he is not a citizen, resident in the county. 

It is enough if the juror be a resident citizen at the time of the trial: 
27 Ga. 287. To disqualify one foreign born, it must appear that he has not 
been naturalized, which may be done by his oath or other competent evidence: 
17 



L974 CALL OF THE DOCKET TO SENTENCE. 258 



Impaneling the jury. 



22 Ga. 546 : 5S/492. After an unnaturalized juror has been put upon the prisoner, 
but before he has been sworn, he may be set down for cause: 58 Ga. 491. 

2. That he is over sixty or under twenty-one years of age. 

A person over sixty years of age is not a qualified juror. This one excused 
legally when his name was called and after defendant had exhausted all his 
challenges but one: 70 Ga. 142; 33/403; 20/752. Set aside after propounding 
statutory questions, if State not prejudiced: 27 Ga. 287. 

8. That he is an idiot or lunatic, or intoxicated. 

If. on inspection, the juror be drunk, the court may set him aside on its 
own motion: 27 Ga. 287. 

4. That he is so near of kindred to the prosecutor, or the accused, 
or t he deceased, as to disqualify him by law from serving on the jury. 

The actual existence of the relationship must be show r n : 74 Ga. 833. 

A cousin to the prosecutor, disqualified: 28 Ga. 439 ; 33/407 ; 75/856. So was 
the nephew of a volunteer prosecutor: 62 Ga. 58. One whose brother married 
prisoner's sister is competent: 89 Ga. 527. And the husband of the widow of 
the prosecutor's uncle, was qualified. The consanguineous relations of relatives 
by affinity, are not related at all. Relationship by affinity does not extend to 
the nearest relations of husband and wife, so as to create a mutual relation 
between them ; 47 Ga. 230. The objection, that the juror was father-in-law of 
the prosecutor, the father of the injured girl, properly abandoned: 18 Ga. 344. 

The bail of accused, not competent, if the State objects : 63 Ga. 675. 

It shall be the duty of the court to hear immediately such evidence 
as may be submitted (the juror being a competent witness) in re- 
lation to the truth of these objections; and if he shall be satisfied 
of the truth of either, the juror shall be set aside for cause. If 
either one of these objections be true in fact, but the fact is unknown 
to either party, or the counsel of such party, at the time the juror 
is under investigation, and is subsequently discovered, such objec- 
tion may be made, and the proof heard at any time before the pros- 
ecuting counsel submits to the jury any of his evidence in the case; 
but if known to the party or his counsel, the objection must be made 
before the juror is sworn in the case. 

These are the only objections which will avail at this stage of the trial, and 
the only ones in which the juror is expressly declared to be a competent wit- 
ness as to his qualification : 73 Ga. 611. 

Court misunderstood witness's answer, and counsel acquiesced: 17 Ga. 194. 

A°t?is?'f5 §^74. (4648.) Peremptory challenges. Every person indicted for a 
p. 2Si. crime or offense which may subject him to death, or four years' im- 
prisonment or longer in the penitentiary, may peremptorily challenge 
twenty of the jurors impaneled to try him. And every person in- 
dicted for an offense which may subject him to imprisonment in 
the penitentiary for any time less than four years, may peremp- 
torily challenge twelve of the jurors impaneled to try him; and 
the State shall be allowed one-half the number of peremptory chal- 
lenges allowed to the prisoner. 



259 CALL OF THE DOCKET TO SENTENCE. WS 

Impan<;linf< the jury. 

As the jurors are called, the State must put them upon the prisoner, or 
otlierwise challenge peremptorily, or for cause: 1 Ga. 222, 610, 619; 2/173. 

When two are tried jointly for an offense of which one may be convicted, 
though the other be acquitted, each is entitled to his full statutory allowance: 

59 Ga. 83. 

The State may demand a severance, unless defendants stipulate to unite in 
their challenges: 59 Ga. 84; 92/601. 

A reasonable time should be given defendant to make his choice. If more 
time is desired, the judge should be notified — he is bound by no unbending 
rule : 76 Ga. 593. 

§975. (4682.) Questions on voir dire. On trials for felonies anyCobb,&43. 
juror may be put upon his voir dire, and the following questions shall 
be propounded to him, viz.: 

1. " Have you, from having seen the crime committed, or having 
heard any of the testimony delivered on oath, formed and expressed 
any opinion in regard to the guilt or innocence of the prisoner at the 
bar ? " If the juror shall answer in the negative, then the following 
question shall be propounded to him: 

2. " Have you any prejudice or bias resting on your mind either 
for or against the prisoner at the bar?" And if the juror shall 
answer in the negative, the following question shall be propounded: 

3. "Is your mind perfectly impartial between the State and the Act .| 3 ^ S55 ' 6 - 
accused ? " And if he shall answer this question in the affirmative, 

he shall be adjudged and held a competent juror in all cases where 
the offense does not involve the life of the accused; but when it does 
involve the life of the accused, the following additional question 
shall be put to him: 

4. " Are you conscientiously opposed to capital punishment? " If Acts_is53--i, 
he shall answer this question in the negative, he shall be held a 
competent juror: Provided, nevertheless, that either the State or the 
defendant shall have the right to introduce evidence before the judge 

to show that the answers, or any of them, are untrue; and it shall 
be the duty of the judge to determine upon the truth of such 
answers as may be thus questioned before the court. 

First question. — The opinion which disqualifies depends on its nature and 
strength, and not on the source in which it originates: 1 Ga. 631; 18/390. 

The test of qualification is having formed and expressed an opinion as to 
guilt or innocence, and an opinion upon one of the facts necessary to make out 
the charge does not disqualify: 45 Ga. 58. 

A juror may be competent if he has formed, but not expressed an opinion : 
15 Ga. 498 ; 2/173. Competent even though he has formed, but not expressed. 
a decided opinion : 15 Ga. 476. 

Formation and expression of an opinion from rumor is good cause of chal- 
lenge : 5 Ga. 85 ; 14/709 ; 15/223. 

The mere formation and expression of an opinion from report does not nec- 
essarily disqualify : 24 Ga. 297; 45/279. To disqualify, it must be decided, de- 
liberate, fixed and abiding: 1 Ga. 618; 12/25. 444; 15/500; 17/146: 18/383 : 
32/581 ; 45/279. He must have formed and expressed an opinion from having 



§975 CALL OF THE DOCKET TO SENTENCE. 260 

Impaneling the jury. 



seen the crime committed, or from having heard the testimony under oath. 
One may form and express an opinion from rumor or from newspaper reports, 
and vol be a qualified and competent juror, if the opinion has not become 
fixed and determined: 79 Ga. 774. That he had formed and expressed an 
opinion from rumor or newspaper reports of the evidence upon a former trial, 
would not disqualify, unless the opinion be fixed and he should answer that it 
would not yield readily to the testimony, or that he could not sit as an impar- 
tial juror: 80 Ga. 451. A loose and vague opinion does not disqualify, unless it 
has been generated by having seen the crime committed or hearing the evi- 
dence on oath: SO Ga. 786. 

8 "ml question. — Bias is anything which turns a man to a particular course, 
propension, inclination. Prejudice is prepossession, judgment formed before- 
hand without examination : 2 Ga. 176. A disqualifying prejudice is a judgment 
or opinion as to the guilt or innocence of the accused, no matter how attained. 
Bias not synonymous with prejudice : 12 Ga. 448. The prejudice applies to the 
person of the accused, not the crime : 34 Ga. 262. A bias or prejudice against 
crime does not disqualify : 3 Ga. 453. 

Third question. — A juror who testifies that he is perfectly impartial, is with- 
out disqualifying prejudice if he has neither seen the crime committed nor 
heard any part of the evidence delivered on oath, and if he has no fixed opin- 
ion, no opinion touching the guilt or innocence of the accused w T hich will not 
readily yield to evidence, although he may entertain an unfixed or floating 
opinion upon the subject, founded on rumor, hearsay or newspaper reports, 
and may have expressed the same: 94 Ga. 595. 

A juror answered, " I think I am as I understand it. " " Do you understand 
the question ? " "Yes." He was competent : 27 Ga. 287. This juror answered 
that he " could not say that it was ; " he was told to answer the question, and 
then said "Yes." He was competent: 72 Ga. 747. 

Fourth question. — Good cause of challenge if he declares that he is conscien- 
tiously opposed to capital punishment: 3 Ga. 453; 32/672; 48/116; 91/15. 

Neither counsel for the State, nor for the defendant, can ask the jurors upon 
the voir dire any other question than those prescribed in this section : 3 Ga. 
453; 9/121; 21/220,227; 24/325; 32/672; 43/238; 56/467 ; 63/600 ; 64/404; 65/94; 
73/609; 85/93; 90/616. 

The court may restate the questions: 22 Ga. 212. And vary them in form: 
21 Ga. 220; 24/325; 32/678; 80/460; 85/94. And explain the meaning: 33 Ga. 
441 ; 65/472. And ask other questions before or after the juror is put upon him 
as a trior: 80 Ga. 451. 

If the juror qualifies, he is prima facie competent, and if defendant objects 
afterward, he must try and prove him incompetent: 63 Ga. 600. Before the 
court as trior: 65 Ga. 94. Then, evidence may be introduced showing his 
incompetency: 9 Ga. 121. The party putting the juror on trial must produce 
evidence of the untruthfulness of his answers, and after that it is within the 
province of the court to hear, or examine, the juror as to his explanation: 
43 Ga. 238. The court may ask him any question except such as will tend to 
inculpate or disgrace him : 85 Ga. 95 ; 14/22. Or to impeach his answers on the 
voir dire: 73 Ga. 611. The judge may confine the investigation to evidence 
aliunde, and decline to allow other questions to the juror: 64 Ga. 375. 

The State may put the juror on the court as a trior: 85 Ga. 95; 73/611. 

Error cannot be assigned on the conclusion of fact of the presiding judge 
acting as trior. The decision is final and cannot be reviewed: 25 Ga. 596 ; 
45/279 ; 23/57 ; 47/598 ; 22/546 ; 68/688 ; 69/12 ; 72/747 ; 80/450. Error could be 
assigned upon a mistake upon law by which an unqualified juror was impan- 
eled : 47/598. 



261 CALL OF THE DOCKET TO SENTENCE. >76-07fl 



Oathfl of p'-tii jury and u i t n<- - -< - . 



When a juror is set down as disqualified , from misapprehension of his answer, 
the mistake, when discovered may be corrected, and he restored to the panel: 
10 Ga. L02. 

The oath may be administered to twelve jurors at once, preliminary to their 
examination on the voir dire. They should be examined separately, and put 
upon the prisoner one at a time: 65 Ga. 430; GO/307; 74/308. 

§976. (4688.) Setting aside for cause. If a juror shall answer any 
of these questions so as to render him incompetent, or he shall be 
so found by the judge, he shall be set aside for cause. 

§977. (4684.) Swearing in chief. If found competenl and Dot 
challenged peremptorily by the State, he shall be put upon the pris- 
oner, and unless challenged peremptorily by him, shall be sworn to 
try the cause. 

Swearing the jurors in chief may be postponed until the full panel is ob- 
tained : 65 Ga. 430. 



Act9 1855-1, 



§978. (4685.) No investigation before triors. When a juror has been A p ct J 5 J 
found competent as aforesaid, no other or further investigation be- 
fore triors, or otherwise, shall be had, unless upon newly discovered 
evidence to disprove his answer, or to show him incompetent as afore- 
said, which may be heard by the judge at any time before any of the 
evidence on the main issue is submitted; and if the juror is proved 
incompetent, the judge may order him withdrawn from the jury and 
cause another selected in the same manner as is above pointed out. 

It is too late after the jury has been sworn for a challenge propter defectum: 
19 Ga. 614. 

After a juror qualifies and is sworn in chief, he can be proved incompetent 
and rejected : 65 Ga. 731 ; 87/517. As well by the State as by the defendant : 
47 Ga. 598. 

If before evidence is submitted it is discovered that one of the jurors was 
on the grand jury that found the bill, the court may withdraw the juror un- 
less both sides waive the objection. It is proper to discharge that jury and 
impanel another: 60 Ga. 601; 45/11; 51/402. 

When several of the jury have been selected, but not sworn in chief, the court 
could excuse him and proceed regularly to complete the panel : 87 Ga 173 ; 
68/612. In a misdemeanor the panel was filled and the parties required to 
strike again : 29 Ga. 681. 

After the jury has entered on the exercise of its functions, it is too late to 
change its membership : 88 Ga. 272. 



ARTICLE 13. 

OATHS OF PETIT JURY AXD WITNESSES. 



§979. (4650.) Petit juror's oath. In all criminal cases, the follow- Cobt - S38 - 
ing oath shall be administered to the petit jury, to wit: "You shall 
well and truly try the issue formed upon this bill of indictment 
between the State of Georgia and A. B., who is charged (here state 



51980, 981 CALL OF THE DOCKET TO SENTENCE. 262 

Testimony to bo reported. 



the crime or offense), and a true verdict give according to evidence. 
So help you God." 

After the court had charged the jury, one of them stated that they had not 
been sworn. The court offered to continue the case, strike another jury, or 
swear that one and go on with the trial ; but refused to discharge defendant 
on motion. They were then sworn and the trial had: 20 Ga. 439. 

If the oath administered deviates from that prescribed, the prisoner should 
object. Acquiescence until after verdict and discharge of the jury is a waiver : 
63 Ga. 168. 

»**• §980. (4G51.) Witnesses 9 oath. The following oath shall be ad- 
ministered to witnesses in criminal cases, viz.: "The evidence you 
shall give to the court and jury upon the trial of this issue between 
the State of Georgia and A. B., who is charged with (here state the 
crime or offense), shall be the truth, the whole truth, and nothing 
but the truth. So help you God." 

Under direction of the court the solicitor-general may administer the 
oath: 67 Ga. 460. 

A Chinaman sworn in the usual form on the Evangelist : 71 Ga. 487. 



ARTICLE 14. 

TESTIMONY TO BE REPORTED. 

Cobb. 841. §981. (4696.) Testimony reported in felonies. On the trial of all 
felonies the presiding judge shall have the testimony taken down, 
and, when directed by the judge, the court reporter shall exactly 
and truly record, or take stenographic notes of, the testimony and 
proceedings in the case, except the argument of counsel. In the 
event of the jury returning a verdict of guilty, the testimony shall 
be entered on the minutes of the court, or in a book to be kept for 
that purpose. 

Decisions under the Penal Code of 1833. Section 4696 of the Code of 1873. 

All of the testimony should be taken down : 18 Ga. 460 ; 42/10. The court 
may take it down : 22 Ga. 212; 28/576. It should be read over to the witness 
for correction : 18 Ga. 460 ; 26/158 ; 12/145 ; 33/303. That may be done in the 
presence of the jury: 27 Ga. 648; 41/484. 

A re-examination may be allowed for that purpose : 20 Ga. 156. 

If a disagreement as to the testimony occurs, the witness, if within reach, 
should be recalled to repeat the evidence given, subject to the recollection of 
the jury. If the witness cannot be recalled, the testimony, as taken down, 
should be read : 25 Ga. 520 ; 26/156 ; 12/331 ; 43/368. 

The court should not read to the jury the evidence taken down, without the 
consent, and in the absence, of the prisoner: 12 Ga. 25; 43/373. Too late to 
object, after it has been done, to reading it to the jury : 21 Ga. 221. 

It is not hearsay, and may be admitted, when proven, to impeach : 43 Ga. 88. 

Decisions under the present section : 

AVhen the court and counsel differ as to what a witness testified, the court 
may require the stenographer to read from his notes the exact words of the 
witness: 83 Ga. 46. 



203 CALL OF THE DOOKKT TO SENTENCE. W2-<M 



Evidence. 



The official stenographic reporter is the officer to perform the duty of taking 
down the testimony. His report, proved by him to be correct, although he 

may not remember the testimony, is competent evidence in another case, of 
what a witness swore, so far as pertinent. State may read a part, the defend- 
ant being at liberty to read the balance : 87 Ga. 622. 



ARTICLE 15. 

EVIDENCE. 



§982. (3747.) Object of evidence. The object of all legal investi- 
gation is the discovery of truth. The rules of evidence are framed 
with a view to this prominent end — seeking always for pure sources 
and the highest evidence. 

§983. (3748.) Sundry definitions. Competent evidence is that which 
is admissible. Sufficient evidence is that which is satisfactory for 
the purpose. Cumulative evidence is that which is additional to 
other already obtained. Direct evidence is that which immediately 
points to the question at issue. Indirect, or Circumstantial evidence 
is that which only tends to establish the issue by proof of various 
facts, sustaining, by their consistency, the hypothesis claimed. Pre- 
sumptive evidence consists of inferences drawn by human experience 
from the connection of cause and effect, and observations of human 
conduct. 

The court need not further define circumstantial evidence than by reading 
this section : 57 Ga. 102. 

Circumstantial evidence proves certain facts wmich sustain, by their con- 
sistency, a hypothesis claimed: 69 Ga. 37. 

8984. Circumstantial evidence, when sufficient. To warrant a convic- fS S a - r!-- 

M 4b Ga. b37. 

tion on circumstantial evidence, the proven facts must not only be 856 *- 228 - 
consistent with the hypothesis of guilt, but must exclude every other 
reasonable hypothesis save that of the guilt of the accused. 

In felonies the rule should not be relaxed : 38 Ga. 295. 

When entirely circumstantial, the evidence should connect defendant with 
the criminal act: 26 Ga. 633; 34/346; 57/106. Circumstances satisfactorily 
proven, which point to his guilt, and which are irreconcilable with the 
hypothesis of his innocence, or which require explanation from him. and may 
be explained by him if he be innocent, but which are not so explained, ought 
to satisfy the conscience of a juror; but it must be remembered, that while 
this is the case, circumstances which would authorize a bare conjecture of 
guilt, are not sufficient to warrant a conviction: 26 Ga. 633; 50/514; 53/253; 
57/483; 71/487; 67/242; 95/456. 

Defendant's counsel may read from " Phillips' Remarkable Cases. " and the 
solicitor-general may characterize it as fiction, but the court should express 
no opinion about it : 65 Ga. 506. 

The evidence in this case is consistent with the guilt of the accused, but is 
not inconsistent with every other rational hypothesis, and is insufficient to 
show guilt beyond a reasonable doubt: 93 Ga. 557 ; 86/355 ; 95/457. When the 



&S985-987 CALL OF THE DOCKET TO SENTENCE. 204 



Evidence. 



evidence is circumstantial and not plainly insufficient, the verdict should 
stand: 58 Ga. 738; 63/90. The facts here excluded every other reasonable 
hypothesis but that of guilt: 74 Ga. 869. A charge approved: 63 Ga. 170; 
74/393. Proof of traekshere.net sufficient to support verdict: 53 Ga. 253; 
~\ 183. Measurement of a track: 65 Ga. 756. Error here to charge, "law 
writers say that a chain of circumstances cannot lie, whilst a witness may " : 
54 Ga. L57. 

§985. Positive and negative testimony. The existence of a fact tes- 
tified to by one positive witness is rather to be believed, than that 
such fact did not exist because many witnesses who had the same 
opportunity of observation swear that they did not see or know of 
its having transpired. 

Positive testimony outweighs negative testimony, the witnesses being equally 
credible : 68 Ga, 688. 

It is positive to say that a thing did or did not happen ; it is negative to say 
that a witness did not see or know of an event having transpired: 67 Ga. 633. 
The rule does not apply when, two parties having equal facilities for seeing or 
hearing a thing, one swears that it occurred, the other that it did not: 66 Ga. 
260; 14/55; 6/324; 79/37, 779. 

Impossible to lay down a uniform rule as to the relative value of the testi- 
mony. It depends upon the opportunity of the witnesses for knowing, and the 
degree of attention which they bestow upon the subject : 26 Ga. 183 ; 12/213 ; 
42/482. 

§986. (3749.) Amount of mental conviction. Moral and reasonable 
certainty is all that can be expected in legal investigation. In all 
civil cases the preponderance of testimony is considered sufficient to 
produce mental conviction. In criminal cases a greater strength of 
mental conviction is held necessary to justify a verdict of guilty. 

§987. When testimony warrants a conviction. Whether dependent 
upon positive or circumstantial evidence, the true question in crim- 
inal cases is, not whether it be possible that the conclusion at which 
the testimony points may be false, but whether there is sufficient 
testimony to satisfy the mind and conscience beyond a reasonable 
doubt. 

The doctrine of reasonable doubt extends to all criminal cases: 18 Ga. 264. 

The most that can be said of matters of fact is, that there is no reasonable 
doubt concerning them: 33 Ga. 257. 

.Moral and not mathematical certainty is all that the law requires, or that 
is attainable: 6 Ga. 276; 63/169. 

The simple rule is, that jurors must not convict without plain and manifest 
proof of guilt: 22 Ga. 212. 

There is room for doubt when the proof in favor of defendant is stronger 
than the evidence against him : 24 Ga. 427. 

The reasonable doubt of the law is one that grows out of the testimony, and 
leaves the reasonable mind wavering and unsettled — not satisfied from the evi- 
dence. The juror cannot create for himself a doubt, and act upon it ; he can- 
not raise an artificial or captious doubt, in order to acquit. The doubt should 
be real, and honestly and fairly entertained, after all reasonable efforts to find 
out the facts: 45 Ga. 264; 20/167; 48/66. It should be reasonable, and not a 
mere vague conjecture or possibility of the innocence of the accused. The 



3-3 Oa. I'u 



205 CALL OF THE DOCKET TO SENTENCE. 



Evidence. 



proof should be such as to control and decide the conduct of men in the highest 
and most important affairs of Life, and not a mere vague conjecture, a fancy, a 
trivia] supposition, a bare possibility of irinocence: 6 Ga. 270; 18/266; 22/285; 

12/144; 63/601, 170; 33/257. 

The jury cannot go beyond the evidence submitted in the cause, toi 
doubts in their minds as to the guilt of the accused : 20 Ga. L56. The doubt 
must be pertinent to the matter in issue, arising out of the evidence, or want of 

evidence: 38 Git. 492; 49/218. Insufficient proof of alibi, considered with the 
other testimony : 67 Ga. 349; 70/651; 83/130; 93/120; 94/591; 95/500. 

If the doubt be reasonable, it is immaterial whether it arises from an usual 
or unusual cause: 30 Ga. 872. 

To charge that "a reasonable doubt is such an one as an upright man might 
entertain in an honest investigation after truth from the evidence," is not 
error against the accused : 47 Ga. 525. 

Reasonable doubt is not the equivalent of any doubt: 84 Ga. 250. It is not 
a rule that there must be no doubt about the facts. It is sufficient that the 
facts connecting the prisoner with the offense be proved beyond a reasonable 
doubt : 57 Ga. 102. 

A correct charge on reasonable doubt as to the whole case and all the evi- 
dence, is sufficient ; and it is not incumbent to apply the rule to one or more 
propositions severally: 84 Ga. 251 ; 83/129, 44. Nor to instruct the jury, that if 
they have a reasonable doubt as to the existence of some particular and 
specially enumerated fact, or what should be the proper inference therefrom, 
it would be their duty to acquit: 90 Ga. 786 ; 92/453 ; 71/129. 

When doubt exists as to the grade, the verdict should be for the lower grade : 
59 Ga. 307 ; 91/272. When it is between offenses, one of which is covered and 
the other not, acquittal should result: 63 Ga. 141. 

When the defense rests upon the doctrine of reasonable doubt, it should be 
given in charge : 67 Ga. 151. A failure to charge the doctrine is error when the 
facts are doubtful : 70 Ga. 825. When there is no doubt of guilt and no request, 
the failure is not error : 76 Ga. 103. 

New trial ordered in case of doubt: 53 Ga. 256; 56/469. 

§988. (3752.) Presumptions of laiv and fact. Presumptions are 
either of law or of fact. The former are conclusions and inferences 
which the law draws from given facts. The latter are exclusively 
questions for the jury, to be decided by the ordinary test of human 
experience. 

Cited : 80 Ga, 238. 

Officers are presumed to have discharged their official duties : 73 Ga. 620. 

Men are presumed to intend the natural and necessary consequences of their 
acts : 70 Ga. 736. 

Sanity is presumed : 56 Ga, 463 ; 76/453. None that indictment was regu- 
larly returned, if the minutes show none : 81 Ga. 483. 

A presumption is an inference of an unknown fact drawn from its necessary 
or usual connection with others which are known : 23 Ga. 582. 

When an escape is put in evidence to raise the presumption of conscious 
guilt, prisoner may rebut it by showing it was attributable to fear: 25 Ga. 527. 

Offer to bribe guard that he might escape, a circumstance : 11 Ga. 123 ; 71/96. 
Flight a circumstance to be considered with its surroundings: 63 Ga. 170; 
56/114 ; 76/836. That accused did not fly is but equivocal evidence of innocence : 
20 Ga. 156. Defendant may show he put an officer upon the pursuit, to raise a 
presumption of innocence: 30 Ga. 757. 



|§ 989-991 CALL OF THE DOCKET TO SENTENCE. 266 

Evidence. 

If the possession of the goods stolen from the house at the time of the bur- 
glary is recent and unexplained, or falsely explained, the jury may treat it as 
sufficient to identify the guilty party. But to do this, they must be convinced 
from other evidence that a burglary has been committed, and the whole evi- 
dence taken together must leave no reasonable doubt that the person on trial 
was the burglar: 87 Ga. 551; 90/102; 84/269; 81/744; 77/762; 76/16; 74/802; 
71/360. S64: 62/179; 56/28, 686; 55/324; 57/503. The rule stated: 68 Ga. 823; 
85/157 : 86/261 ; 93/186 ; 58/82 ; 53/252 ; 61/311 ; 73/799 ; 69/273 ; 91/277 ; 92/33, 
581 ; 84/258. Reference to the element of recency should never be omitted : 
95 Ga. 223, 456. 

Such possession puts upon the possessor the burden of proving that his is 
not a guilty possession : 65 Ga. 199. Proof that should have been admitted to 
explain possession : 95 Ga. 459. 

The acquisition of the goods by any means whatever other than by partici- 
pating in the crime charged, will meet the presumption: 91 Ga. 283; 85/157. 

Unexplained possession does not of itself authorize a conviction, but it is 
a circumstance for the jury to consider: 85 Ga. 158; 86/261. 

TiGa'uo' §989. Presumption arising from failure to produce evidence . When a 
party has evidence in his power and within his reach, by which he 
may repel a claim or charge against him, and omits to produce it, 
or, having more certain and satisfactory evidence in his power, relies 
upon that which is of a weaker and inferior nature, a presumption 
arises that the charge or claim is well founded, but this presumption 
may be rebutted. 
77 Ga. 440. 

§990. (3754.) Prima facie presumptions. Other presumptions of 

law, such as of innocence, and in some cases of guilt, of continuance 

of life for seven years, of a mental state once proved to exist, and 

all similar presumptions, may be rebutted by proof. 

Innocence is presumed until guilt is proved beyond a reasonable doubt: 
1 Ga. 621; 32/586; 63/170; 70/736. 

§991. (3755.) Number of witnesses necessary. The testimony of a 
single witness is generally sufficient to establish a fact. Exceptions 
to this rule are made in specified cases, such as to convict of treason 
or perjury, and in any case of felony where the only witness is an 
accomplice; in these cases (except in treason) corroborating circum- 
stances may dispense with another witness. 

The rule applies only to felonies: 43 Ga. 197; 88/457; 75/356. 

Testimony of the accomplice alone, sufficient in misdemeanors: 76 Ga. 658; 
43/197 ; 51/597 ; 75/356, 474 ; 89/394. Complicity goes to his credit : 43 Ga. 197. 

An accessory after the fact is not an accomplice : 72 Ga. 649 ; 74/769. A boy, 
twelve years old, coerced by fear of life or limb, not an accomplice: 72 Ga. 200. 

If the witness did not aid, abet, procure, or participate in the crime, he was 
not an accomplice, although he may have been present and may have con- 
cealed the fact : 74 Ga. 769. 

The jury should determine whether the witness was an accomplice : 72 Ga. 
200; 75/474; 76/613. 

The law does not, and cannot, lay down any rule to measure the extent of 
the corroboration necessary : 44 Ga. 215 ; 56/356. The corroborating testi- 



207 CALL OF THE DOCKET TO SENTENCE. W2 : 993 



Rules governing the admission of testimony. 



mony aRtotime, place, and the circumstances of the transaction, not. sufficient 
unless it connects defendant with the crime: 52 Ga. LOB, 580 ; 66/814; 64/844; 
92/584. And it must be such as to satisfy the jury: 78 Ga. 572; 52/886. It 
should be such as, independently of his testimony, to lead to the inference 
that defendant is guilty. A grave suspicion of guilt, not sufficient: 60 Ga. 346. 

Slight evidence that the crime was committed by defendants, identifying 
them with it, will corroborate the accomplice and warrant the finding: 78 Ga. 
351; 55/221. Voluntary confessions are sufficient: 67 Ga. 570. Proof of the 
corpus delicti will corroborate a confession, and a confession thus supported 
will corroborate an accomplice : 93 Ga. 177. 

Possession of the goods by defendant, as corroboration, after proof of the 
corpus delicti : 92 Ga. 33, 581 ; 70/722. 

The wife of the accomplice may be a witness to corroborate : 75 Ga. 356 ; 
69/13. Corroboration sufficient here: 63 Ga. 159; 75/356. Not so here: 
92 Ga. 578. 

When the State does not rely wholly on the accomplice, it is not incumbent 
on the court, without request, to charge upon the subject: 84 Ga. 674. 

§992. Alibi, as a defense. Alibi, as a defense, involves the impossi- jjjj qJ; ]%'. 
bility of the prisoner's presence at the scene of the offense at the 64 Ga# 344, 
time of its commission; and the range of the evidence, in respect to 
time and place, must be such as reasonably to exclude the possibil- 
ity of presence. 

The onus is on the accused to verify the alleged alibi, not beyond reasonable 
doubt, but to the reasonable satisfaction of the jury: 83 Ga. 130; 93/120; 
94/591; 59/142; 91/11; 74/394; 70/651; 34/110. 

It is not required that the evidence or conviction of impossibility of the 
prisoner's presence, should be more strong or full than would be sufficient to 
set up any other fact in the case : 63 Ga. 89 ; 59/142 ; 70/659. 

Any evidence whatever of alibi is to be considered on the general case with 
the rest of the testimony, and if a reasonable doubt of guilt be raised by the 
evidence as a whole, the doubt must be given in favor of innocence: 83 Ga. 
130; 95/500; 93/120; 94/591; 70/651; 67/349; 78/91; 75/856. Defendant so 
drunk he did not know where he was : 54 Ga. 577. 

As a matter of pleading, the defense of alibi is covered by the general issue 
of not guilty : 91 Ga. 11. 

An erroneous charge : 51 Ga. 597 ; 85/666. 

Charge where the question of personal identity and the fact of alibi were 
virtually the same defense : 88 Ga. 553. 

Failure of proof here : 67 Ga.570. 

As a ground for new trial : 34 Ga. 114. 



ARTICLE 16. 



RULES GOVERNING THE ADMISSION OF TESTIMONY. 

§993. (3757.) Character and conduct of parties. The general char- 
acter of the parties, and especially their conduct in other transac- 
tions, are irrelevant matter, unless the nature of the action involves 
such character and renders necessary or proper the investigation of 
such conduct. 



|§994, 9 CALL OF THE DOCKET TO SENTENCE. 268 



Rules governing the admission of testimony. 



The State cannot put the character of defendant for violence, nor the char- 
acter of deceased for peaceableness, in issue: 43 Ga. 88. Omission to show 
good character does not justify presumption that it is bad, from which an in- 
ference of guilt can be drawn. Solicitor should not argue that defendant's 
character was bad because he had not put it in issue: 86 Ga. 401 ; 92/448. 

Phe character of the defendant was put in issue by his statement alone: 
76 Ga. 552. 

When the guilt of the accused is made to appear to the satisfaction of the 
jury, they are authorized to convict, regardless of the good character of the 
accused ; but the jury have a right to consider his good character, not merely 
when his guilt is doubtful under the other testimony in the case, but when 
such testimony of good character may itself generate the doubt: 81 Ga. 591; 
19/102; 59/784; 66/309; 76/551; 10/101; 88/92; 83/580. 

Notwithstanding strong and satisfactory evidence of good character, guilt 
may be established by a chain of circumstances: 81 Ga. 736. 

As to whether the law presumes that a defendant has a good character : 
86 Ga. 404; 31/331. 

Evidence of general character of woman arrested as a "street-walker" : 
74 Ga. 516. And of women at a lewd house: 57 Ga. 390. 

General character for violence cannot be established by proof of specific 
acts: 70 Ga. 134; 18/194; 43/128. 

Proof of the violent and turbulent character of the deceased is admissible 
only when it is shown prima facie that the prisoner had been assailed and was 
honestly seeking to defend himself: 70 Ga. 147; 90/312; 5/86. Evidence of 
bad character of deceased for violence is to throw light on the guilt or inno- 
cence of defendant. It affords no substantial aid here : 90 Ga. 310. 

A witness who has testified to the good character of the accused, may be 
asked on cross-examination if he has not heard of a specific charge against the 
accused. The shadings, as well as the brighter hues, are to be considered in 
making up the estimate of character and reputation: 87 Ga. 181. 

§994. (3758.) Burden of proof . The burden of proof generally 
lies upon the party asserting or affirming a fact, and to the existence 
of whose case or defense the proof of such fact is essential. If a 
negation or negative affirmation be so essential, the proof of such 
negative lies on the party so affirming it. 

On a charge of allowing a minor to play ten-pins, the burden is on the State 
to show no consent of the parent: 50 Ga. 103. If, in order to make the de- 
fendant guilty, it be necessary to show a negative, the burden of showing it is 
upon the State : 50 Ga. 107. Whatever is made an essential part of the offense 
must be set out in the indictment and proven : 13 Ga. 435. 

On a charge of selling spirituous liquors to a minor, is the burden on the 
State of showing that the retailer did not have authority of the parent or 
guardian? 56 Ga. 601 ; 75/267. 

The burden of proving an alibi is on the person setting it up : 91 Ga. 11. 
But not to the exclusion of a reasonable doubt: 93 Ga. 120. The burden of 
showing that a confession was not voluntary is on the prisoner: 47 Ga. 599. 

§995. (3759.) Changing onus. What amount of evidence will 
change the onus or burden of proof, is a question to be decided in 
each case by the sound discretion of the court. 



2(59 CALL OF THE DOCKET TO SENTENCE. 



Of hea i •' , 



§996. (8769.) Proof of origvfyol as to admission of copy, Theexisl 
ence of a genuine original, is essential to the admissibility of a copy. 
The amount of evidence to show such existence, tnusl vary with the 
circumstances of each case. Where no direct issue is mad'; upon the 
fact, slight evidence would be sufficient. 

Copy of a lost brief of evidence admitted : 28 Ga. 19. 

Copy of lost original process admitted : 21 Ga. 217. Witness may State that 
he wrote a letter addressed to a particular individual, but may not Btate its 
contents, unless the foundation be laid: 28 Ga. 66; 85/438. 



ARTICLE 17. 



OF HEARSAY. 



§097. (3771.) Sometimes original evidence. When, in a legal inves- 
tigation, information, conversations, letters, and replies, and similar 
evidence, are facts to explain conduct and ascertain motives, they 
are admitted in evidence, not as hearsay but as original evidence. 

Not admissible to prove that witness received a message from deceased : 
56 Ga. 463. Nor that a person other than prisoner admitted the crime : 
65 Ga. 199 ; 85/72. Nor that deceased said he had a difficulty with a person 
not the prisoner: 65 Ga. 761. 

What a person said, admitted to explain declarations of deceased: 87 Ga. 
262. That witness heard a person say that prisoner hired him to commit the 
crime, inadmissible : 88 Ga. 347. When hearsay statements are subsequently 
proved by the witness who made them, the error is cured: 60 Ga. 258; 55/696. 

§998. (3773.) Res gestae. Declarations accompanying an act, or 
so nearly connected therewith in time as to be free from all suspi- 
cion of device or afterthought, are' admissible in evidence as part 
of res gestae. 

The declarations must have been made at the time of the act done, and 
calculated to show the nature and quality of the facts they were intended 
to explain, and so harmonize with them as to constitute one transaction: 
5 Ga. 134. 

They must be contemporaneous with the main fact and immediately con- 
nected with it, but need not be precisely concurrent in point of time: 1 Ga. 
222; 11/615; 7/373. No precise period of time can be fixed when res gestiv ends. 
Inquiry is rather into events than precise time. Is it naturally and spontane- 
ously part of the same transaction ? 48 Ga. 607. 

What the law altogether distrusts is not after-speech, but afterthought. 
That they shall appear to be spontaneous is indispensable, and it is for this rea- 
son alone that they are required to be speedy. There must be no fair opportu- 
nity for the will of the speaker to mould or modify them : 90 Ga. 478. 

The declarations must relate to the issue being tried : 18 Ga. 704 : 28/213. 

When motive is material, what is said at the time from which it may be col- 
lected, is a part of the res gestae: 5 Ga. 85 ; 11/623 ; 43/130. 

All that transpires from the beginning to the end of the difficulty is admis- 
sible, though some interval of time intervenes: 57 Ga. 184. 



§908 CALL OF THE DOCKET TO SENTENCE. 270 

Of hearsay. 

All the circumstances of a transaction that afford any fair presumption as to 
the matter in issue, are admissible: IS Ga. 194. 

When parties agree to arm and fight, and they separate and arm, meet 
within an hour and fight, all pertinent acts and declarations in the interval 
belong to the res gestx: 64 Ga. 375. 

On an indictment for carrying a negro out of the county, all that is done or 
said during the carrying, admissible: 29 Ga. 430. 

Sayings of accused as to the ownership of a hog alleged to be stolen during 
the time of possession, admissible: 28 Ga. 256; 34/208. 

What defendant said pending possession of a sack of meat charged to have 
been stolen, and tending to explain it, was admissible ; possession being contin- 
uous, the res gestx was continuous: 80 Ga. 255; 30/872. 

The following declarations were admissible : 

Statement of deceased as to who shot him, made immediately after he was 
shot: 73 Ga. 621. 

The remark of deceased as he left the store, as a part of his act in going 
to the scene of the contest: 72 Ga. 679; 67/460. 

What the injured person said at the moment of the restoration of sensibility 
on the day of the assault: 65 Ga. 94. 

Statement of deceased as to how he was injured, made almost immediately 
after he received the injury: 61 Ga. 192; 65/472. 

A declaration on the spot made three minutes afterwards : 27 Ga. 288. 

One made two to five minutes afterwards: 55 Ga. 697. 

One a few minutes afterwards: 53 Ga. 571. 

One two or three minutes after the shooting: 32 Ga. 521. 

At or immediately after the assault: 32 Ga. 672; 15/118. 

By a bystander almost instantaneously with the stabbing, that he did it : 
64 Ga. 56. 

Of one party to a rencounter, just before its occurrence, within hearing of 
the other: 59 Ga. 400. 

Of defendant, as to his purpose in going to the house he was approaching 
when shot: 72 Ga. 441. Of deceased, as he was carried away, and within five 
minutes: 71 Ga. 129. • 

Of deceased, five or six minutes afterwards, and while calling for assistance : 
69 Ga. 68. 

What deceased said immediately after the beating: 92 Ga. 16. 

Conduct of defendant, twenty or thirty minutes afterwards: 94 Ga. 590. 

Conduct and declarations of a person robbed, immediately after the act and 
as a natural and probable consequence therefrom: 87 Ga. 516. What was said, 
as to ownership, by the seller at the time prisoner's agent purchased the goods 
in prisoner's absence: 55 Ga. 296. 

To a thief at the time of the larceny, against accessory before the fact: 
43 Ga. 197. Unusual manner during an unfriendly material interview: 57 Ga. 
102. Acts of violence, in escaping, at the time of the killing, to show quo 
ammo: 26 Ga. 276; 88/203. What third persons did during the difficulty: 79 
Ga. 696. Origin of opportunity and its continuance in adultery: 81 Ga. 149. 
Of accused at the time: 79 Ga. 512. Previous declarations by defendant, to 
explain conduct and discover the quo anirno: 5 Ga. 85. 

In seduction, acts and sayings between the parties before and after: 48 Ga. 
193. Of child, immediately after the rape: 55 Ga. 303. 

The following were inadmissible: 

A whispered communication that indicated premeditation: 90 Ga. 473. By 
defendant, days afterwards, toa physician, as to when and by whom the injury 



271 CALL OP THE DOCKET TO SENTENCE. 909, 1000 



Of hearsay. 



was inflicted: 45 Ga. 225. Opinion of a spectator concerning an afTair, no part. 
of it: 30 Ga. 400; 76/593. 

By prisoner ten or twelve minutes afterwards, and after arrest : 48 Gft« 807. 
Made some days afterwards: 74 Ga. 373. The first of two distinct, fight*: 
25 Ga. 396. By prisoner, two hours afterwards, arid two miles from the place: 
62 Ga. 65. 

By one of two persons who were shot by defendant, that defendant would 
not have done it if he had been sane : 76 Ga. 453. 

When part of a conversation has been admitted, all may be brought out on 
cross-examination : 64 Ga. 376 ; 60/258 ; 28/256. 

If declarations be improperly admitted, the error is cured if the statements 
are proved by the person who made them : 64 Ga. 376 ; 60 Ga. 258. 

§999. (3775.) Declarations of conspirators. After the fact of con- 
spiracy is proved, the declarations of any one of the conspira- 
tors during the pendency of the criminal project, are admissible 
against all. 

Whenever a prima facie case of concurrent or joint action is made, the 
whole transaction should be submitted to the jury: 17 Ga. 356. When concert 
of action is shown, the court, in its discretion, may admit the acts and decla- 
rations of one accomplice to criminate the other, touching the common object : 
8 Ga. 408 ; 17/356 ; 66/690. The question of conspiracy being ultimately for the 
jury : 66 Ga. 693. The acts and conduct of one accomplice during the pendency 
•of the wrongful act, not only in its perpetration, but also in its subsequent con- 
cealment, and also his sayings pending the common criminal enterprise, are 
admissible against the other: 68 Ga. 661. 

Possession of the money by one conspirator was the possession of all : 66 Ga. 
695. That several cars were plundered, and the same class of goods stolen 
were found with all the defendants, admissible to show conspiracy. 73 Ga. 595. 

Sufficiently shown here: 61 Ga. 182; 73/799; 76/732. But not here: 79 
Ga. 696. 

After-declarations only affect the person making them: 20 Ga. 681. 

§1000. (3781.) Dying declarations. Dying declarations, made by 
any person in the article of death, who is conscious of his condition, 
as to the cause of his death and the person who killed him, are ad- 
missible in evidence in a prosecution for the homicide. 

This does not contravene the rule that the accused shall be confronted with 
the witnesses against him : 11 Ga. 353. 

Admissible only in a case of homicide when there is a criminal proceeding 
against the slayer: 39 Ga. 225; 71/128. 

At common law admitted with great caution and only from necessity, but 
now may be proved although there be evidence of the homicide and circum- 
stances: 74 Ga. 101; 92/465. Admissible to prove any relevant fact embraced 
in the res gestse: 91 Ga. 729. 

Great caution is necessary in the admission and use of this kind of testi- 
mony : 71 Ga. 128. 

Deceased must be in extremis and must believe that he is in a dying condi- 
tion : 11 Ga. 353; 43/249; 24/297,325; 41/484; 62/58; 71/279; 79/63. 87: 80/272. 

The court must judge of the preliminary evidence in the first instance : 
62 Ga. 58 ; 71/128 ; 79/87. And it will be presumed that the judge did his duty 
in passing on it: 92 Ga. 16. 



§§1001-1008 CALL OF THE DOCKET TO SENTENCE. 272 



Of admissions and confessions. 



That tike preliminary examination was conducted before the jury, no 
ground for a new trial, none of the declarations being elicited: 72 Ga. 441. 

When a prima facie case is made out, the evidence should be submitted to 
the jury for them to determine whether they were made in immediate 
prospect of death: 11 Ga.353; 56/236; 62/58; 71/128; 75/181; 80/272; 79/447; 
90/118. 

Character of deceased for wickedness, considered by the jury: 43 Ga. 239. 

Belief inadmissible: 22 Ga. 478. And of opinion: 38 Ga. 50; 53/572. This 
is not a conclusion, but a fact: 79 Ga. 63. 

These admissible: 72 Ga. 679. 

Statements of deceased in conflict with the proven dying declarations, ad- 
missible: 74 Ga. 101. 

§1001. (3782.) Testimony of ivitness on former trial. The testimony 
of a witness, since deceased, or disqualified, or inaccessible for any 
cause, given under oath on a former trial, upon substantially the 
same issue and between substantially the same parties, may be 
proved by any one who heard it, and who professes to remember the 
substance of the entire testimony, as to the particular matter about 
which he testifies. 

The testimony of an absent witness, given on a former trial, read by de- 
fendant: 49 Ga. 214. 

If it be competent for defendant to prove w T hat a witness, since deceased, 
swore on the committing trial, the witness offered to prove it, must remember 
the substance of the entire testimony as to the particular matter: 63 Ga. 692; 
69/596 ; 71/129. Defendant not allowed to read ex parte affidavits of dead or 
absent witnesses, taken in a collateral matter: 33 Ga. 303. 

AVhen a State's witness who testified at a committing trial subsequently 
died, his testimony was admissible on the final trial, and it could be proved 
by parol, it not appearing that it w T as reduced to w r riting: 68 Ga. 833. The 
same ruling when the witness w r as in another State and it appeared that the 
testimony had been reduced to writing: 72 Ga. 116. The better opinion seems 
to be that, if the witness be dead, his testimony may be admitted in behalf of 
the State, but his removal from the State, the defendant doing nothing to 
prevent his attendance, will not, the witness being still alive, render such tes- 
timony admissible : 92 Ga. 480. 



ARTICLE 18. 

OF ADMISSIONS AND CONFESSIONS. 

§1002. (3788.) Definitions. Admissions usually refer to civil 
cases; confessions to criminal. 

§1008. (8790.) Acquiescence, or silence, when the circumstances 

require an answer or denial, or other conduct, may amount to an 

admission. 

The sayings must have been in his immediate presence where he could hear 
distinctly all that was said, and witness must be certain his attention was 
arrested: 65 Ga. 147. There should be evidence of direct declarations of that 
kind which naturally call on him to contradict them: 81 Ga. 642. Admissible 



278 CALL OF THE DOCKET TO SENTENCE- $S<S 1004, 1006 



Of admiHHions and confoHHionn. 



when it affirmatively appears that he assented to them by silence ov other- 
wise : 29 Ga. 430 ; 48/329. 

Where circumstances warranted the inference that he heard the statement*, 
but did not deny them, tliey were admitted, the question whether they were 
heard being left to the jury: 66 Ga. 740. Statements of deceased in defend- 
ant's presence and not denied by him, admitted: 69 Ga. 36. That defendant, 
when appealed to to confess, refused but did not deny guilt, admitted: 
27 Ga. 649. 

Not shown here that defendant heard the statement: 29 Ga. 105. Failure 
to deny, during a judicial investigation, a statement imputed to him, not 
admissible: 93 Ga. 557. 

§1004. (3791.) Entire conversation. When an admission is given 
in evidence, it is the right of the other party to have the whole ad- 
mission and all the conversation connected therewith. 

If the State gives in evidence a confession, the prisoner may prove all that 
he said in that conversation: 47 Ga. 524; 22/40; 64/376. 

Witness may state as much of the conversation as he heard : 45 Ga. 225 ; 
85/100. A witness may testify to the substance of a statement as he under- 
stood it, though he may know there was indistinctness in his hearing as to the 
words or the sense of the statement : 64 Ga. 375. 

The admission may be partly true and partly false : 89 Ga. 426. Impression 
of the witness when mere deduction, not admissible: 47 Ga. 524. Statements 
between others in defendant's absence, not admissible: 71 Ga. 128. 

§1005. (3792.) Weight of such evidence. All admissions should be 
scanned with care, and confessions of guilt should be received with 
great caution. A confession alone, uncorroborated by other evi- 
dence, will not justify a conviction. 

Admissions by prisoner which only tend to prove his participation in the 
crime, are circumstantial, and should not be characterized as confessions — 
they may be made in the line of an implied denial of guilt: 79 Ga. 691. 

Where a prisoner did not confess his guilt, but only admitted his presence 
at the scene of the crime, the court should not charge as though he had made 
a confession : 63 Ga. 600 ; 79/691. There is a wide distinction between admit- 
ting the main fact, and admitting some minor or subordinate fact wdiich could 
be true whether the main fact existed or not: 90 Ga. 471. A statement by 
defendant that he was present when another committed the crime, is not a 
confession of his own guilt: 93 Ga. 557. Nor is the statement that he was 
casually present, took no part in it, and did not know it was contemplated: 
94 Ga. 590. 

What defendant swore on the trial of another for the same homicide, 
admissible against him as an admission : 87 Ga. 622. 

Defendant's statements on a motion to continue, admitted: 77 Ga. 243. 
Statements made during the progress of a coroner's inquest: 81 Ga. 553. 
Evidence of a repetition, between third persons, of a conversation, already in 
proof, with defendant, admissible : 26 Ga. 493. 

Whether it is necessary to inquire whether admissions were freely and vol- 
untarily made or not: 90 Ga. 469. 

As a general rule, the confessions of a party, freely and solemnly made, are 
the highest evidence : 11 Ga. 59. 

It is a sound rule of law and of common sense, that a free confession is 
very strong evidence of guilt: 47 Ga. 609. But it is not the duty of the court 
to classify the evidence as to its weight or consideration : 43 Ga. 484. 
18 



§1006 CALL OF THE DOCKET TO SENTENCE. 274 



Of admissions and confessions. 



Confessions may be direct or circumstantial evidence. If they be of facts 
directly admitting the commission of the crime, they are direct; but if the 
fact confessed be only matter from which an inference of participation arises, 
i hey are circumstantial: 47 Ga. 599; 79/687; 91/278. 

They are received with great caution on account of the danger of mistake 
from misapprehension of witness, misuse of words, failure of the party to 
express his own meaning, and the infirmity of memory: 23 Ga. 296. 

The court, after charging the jury as to their right to reject the confession 
if not voluntary, may restrict the charge touching caution, to dealing with 
the confession after finding it to be free and voluntary: 84 Ga. 250. 

Confessions alone will not justify a conviction : 43 Ga. 256. If corroborated 
by circumstances, they would be sufficient: 72 Ga. 98; 56/44; 57/479; 81/196; 
75/863. 

Confession corroborated by proof of an unlawful killing, sufficient: 45 Ga. 
44; 63/339; 65/152; 69/14; 93/177. 

A doubtful or contradictory confession by a man of good moral character, 
will not warrant a conviction where the corpus delicti is uncertain: 86 Ga. 90. 

The Code does not fix the amount of corroboration. The jury are the 
judges of it, and if they convict on a confession which is corroborated by only 
one circumstance, the rule is complied with: 45 Ga. 56; 64/606. 

§1006. (3793.) Confession must be voluntary. To make a confes- 
sion admissible, it must have been made voluntarily, without being 
induced by another, by the slightest hope of benefit or remotest fear 
of injury. 

Before admitting a confession, the judge should see to it that it w r as freely 
and voluntarily made: 95 Ga. 467. 

If the State's witnesses show they were not voluntary, the court excludes 
them ; if they show r they w r ere]voluntary, they are admitted, and the question 
is for the jury : 59 Ga. 333 ; 95/467. Where a prima facie case is made, defend- 
ant cannot introduce witnesses to have the State's evidence rejected : 59 Ga. 
335; 95/467. 

The court may investigate at any time, and if the testimony is improper, 
rule it out: 88 Ga. 628. 

Confessions are presumed to be voluntary until the contrary appears, and 
the burden of showing to the contrary is on the prisoner: 47 Ga. 599; 59/333. 
The better practice is to begin by showing they were freely and voluntarily 
made, but when evidence of confessions has been received without objection 
by accused and without requiring the preliminary proof, no error is committed : 
88 Ga. 627; 79/730; 59/467. 

The preliminary examination before the court to ascertain if they w r ere vol- 
untary is properly conducted in presence of the jury: 45 Ga. 44. 

Whether the jury shall be retired or not is one resting in the sound discre- 
tion of the court, and that discretion will not be controlled unless it is abused : 
SI Ga. 564 ; 90/470 ; 65/36, 506 ; 72/98, 55. 

It is better, before admitting a confession, to require such proof that it was 
freely and voluntarily made, as will satisfy the mind of the court, the question 
being ultimately left to the jury: 79 Ga. 730. The decision of the judge that 
they were voluntary is only prima facie: 45 Ga. 44. Where the evidence was 
conflicting on the point, the court left it to the jury to determine whether the 
confessions w r ere freely and voluntarily made or not: 80 Ga. 359. The court 
properly instructed the jury that they were to determine whether the confes- 
sion was voluntary ; if it was they should consider it, otherwise not: 84 Ga. 
255,613; 45/44; 47/572; 79/730; 93/208; 80/359. 



275 CALL OF THE DOCKET TO SENTENCE. . LOOT 

or admissions and confessions. 



The jury weigh confessions and believe them or not. ;is they may consider 
them reasonable and probable, and in accordance* with the truth: 20 Ga. 752; 
23/57; 42/544; 17/140. They are to be passed upon in all respects by the jury: 

45 Ga. 44 ; 47/572 ; 60/620. 

To be admissible, the confession must not be induced by another by the 
slightest hope of benefit or einotest fear of injury: II Ga. 22(> ; 46/298; 
54/39, 249; 55/136; 61/305, 19 ; 68/661; 76/76; 20/60; 40/529. 

Whether previous influences were still operating on the mind when confes- 
sions were made, was a que tion of fact for the jury : 21 Ga. 227 ; 45/43. 

That they were made while in legal imprisonment is no objection to their 
competency: 11 Ga. 226; 15/535; 27/649; 45/43. 

Public policy allows proof by a jailer of a prayer which inculpates the per- 
son, a prisoner, making it: 85 Ga. 72; 66/508. 

The rule is to admit inculpatory admissions or confessions and to exclude 
those which are exculpatory, when disconnected therewith: 85 Ga. 72. 

The hope that excludes is that which some other person excites : 92 Ga. 32. 

Voluntary confessions inconsistent with others which were made under 
some inducement, admitted: 77 Ga. 471. On a charge of burglary, confession 
of the larceny of goods admissible : 84 Ga. 258. 

Confession to witness admissible, though witness received prisoner from de- 
tective, who had held out promise: 63 Ga. 601. These were apparently volun- 
tary : 89 Ga. 425. 

In the nature of a confession : 76 Ga. 786. Admissible where detective used 
artifice to induce accused to confide in him: 91 Ga. 278. That, after a confes- 
sion, witness suggested that it would be better for accused to disclose his 
accomplices, would not exclude a confession, as to his own guilt, made to 
another witness: 94 Ga. 400. That a fellow prisoner — not one in authority 
over him — told accused he had better tell the truth, etc., did not, as matter of 
law, exclude the confession : 94 Ga. 12. Not too general here for proof of the 
specific offense charged : 86 Ga. 257. 

Practice of extorting confessions by officers, condemned: 88 Ga. 519, 628. 

Extorted confessions of a slave, admitted to illustrate what defendant said, 
and pointing to a distinct fact from which guilt can be inferred: 10 Ga. 512; 
11/256. This made in jail to the sheriff and another, not admissible : 88 Ga. 
516; 94/11. 

Admissions of a jointly indicted defendant not on trial, inadmissible : 22 Ga. 
399; 82/444; 57/102; 65/199. 

Confession of principal, admissible on trial of accessory, to show principal's 
guilt : 46 Ga. 298 ; 60/620. 

Witness identified accused by his voice, when he made a confession in the 
dark : 93 Ga. 450. 

Verdict demanded by the evidence ; and confessions, even if extorted, not of 
sufficient force to demand a new trial: 77 Ga. 768. Admissibility doubtful, 
but proof of guilt was clear : 88 Ga. 627. 

If the evidence calls for it, the law applicable to hope as well as fear should 
be given : 34 Ga. 262. Erroneous charge, but proof clear: 77 Ga. 596. Error 
to charge on confessions, when no proof of confessions : 63 Ga. 601 ; 65/147. 

No error to fail to charge upon their force, in the absence of a request : 
77 Ga. 768. 

Two principals confess, but verdict contrary to evidence: 56 Ga. 314. 

§1007. (3794.) Under 'promise of secrecy. The fact that a confes- 
sion is made under a spiritual exhortation, or a promise of secrecy, 
or a promise of collateral benefit, shall not exclude it. 



§§ 100&-1010 CALL OF THE DOCKET TO SENTENCE. 276 



Prisoner's statement. 



Spiritual exhortations had better be left to the clergy: 20 Ga. 68; 55/592. 

§1008. (8795.) Material fad* disco re red. Any material facts dis- 
covered bv a confession by a prisoner may be proved, and the fact 
of its discovery, by reason of such information, though the confes- 
sion is rejected. 

Kvidenee of the facts made known, together with so much of the confession 
as relates strictly to the facts discovered, admissible : 75 Ga, 825 ; 78/98 ; 94/363. 

If extorted confessions are attended with extraneous facts which show that 
the confessions are true and go to prove the crime, such facts are admissible ; 
as. where the confessor points out where the stolen property is, or where 
deceased was buried, etc. If a search for the property or body proves ineffec- 
tual, no proof of confession or search will be received: 78 Ga. 99. 

The rule does not apply if criminal violence was used in procuring the con- 
fession or making the discovery : 94 Ga, 363. 

§1009. (3796.) Confession of conspirators. The confession of one 
joint offender or conspirator, made after the enterprise is ended, is 
admissible only against himself. 

These made after the enterprise ended, and inadmissible: 48 Ga. 328. 

Subsequent declarations, narrative merely of past occurrences, admissible 
only against party making them: 20 Ga. 681. 

Subsequent attempt to suppress testimony by defendant and others, admis- 
sible: 20 Ga. 681. 

Jointly indicted accomplice not on trial, a competent witness for the one 
that is: 1 Ga. 610; 18/704. 

Confession of principal in the first degree, admissible only to prove his guilt 
on trial of principal in second degree: 7 Ga. 3. 



ARTICLE 19. 



PKISONER S STATEMENT. 



A P ct 24 1868, §1010. (4637.) Prisoner's statement. In all criminal trials, the 
1874, pp. 22, p r i son er shall have the right to make to the court and jury such 
1878-9. p. 53. statement in the case as he may deem proper in his defense. It shall 
not be under oath, and shall have such force only as the jury may 
think right to give it. They may believe it in preference to the 
sworn testimony in the case. The prisoner shall not be compelled 
to answer any questions on cross-examination, should he think 
proper to decline to answer. 

The statutory right is, one statement ; it is discretionary with the court 
whether another shall be allowed : 88 Ga. 731. It is not a matter of right to 
make a second statement after the State has strengthened its case: 94 Ga. 590. 

The court may prevent the statement of long, rambling and irrelevant 
matter ; yet as to all matters connected with the case, prisoner may make such 
statement as he may think proper, and should not be restricted to such facts 
as would be admissible in evidence: 66 Ga. 310; 45/58; 88/735. The privilege 
has never been carried so far as to allow the party to state wholly irrelevant 
matter, or such as would be violative of every principle or rule of evidence: 
72 Ga. 262 ;' 73/84. 



277 CALL OF THE DOCKET TO SENTENCE. § 1010 



Prisoner's statement. 



The omission of a statement, not to be considered by the jury in determin- 
ing defendant's guilt: 50 Ga. 585. 

Solicitor should not argue to the jury from the omission of defendanl to 

make a statement: 82 Ga. 535. 

The introduction of the statement does not deprive prisoner of the conclu- 
sion: 48 Ga. 30; 78/100. 

There is no presumption one way or the other, respecting tlx- truth of the 
statement: 91 Ga. 283. 

The State may introduce evidence to contradict the statement: 45 Ga. 44; 
68/612; 77/513; 80/357; 86/108,362; 89/167. 

It may be contradicted by proof of conflicting statements before the magis- 
trate, and his attention need not be called to the time and place: 77 Ga. 734. 

A witness already examined may be recalled to contradict, although it in- 
volves a repetition of some of his testimony: 81 Ga. 165. A witness not under 
the rule may testify in rebuttal of the statement : 68 Ga, 612. 

Defendant's statement on a former trial, admissible against him : 63 Ga. 
600; 91/169. 

The making of a statement does not authorize an impeachment of his 
veracity by proof of general bad character and that he could not be believed 
on oath : 77 Ga. 513 ; 88/735. 

That defendant was prevented by accident from stating all that he in- 
tended to say, not ground for a new trial — the right was not denied by the 
court: 72 Ga. 206. Even if the failure, here, to make a statement, was the 
result of defendant's ignorance, or the neglect or oversight of counsel, it does 
not appear that he was injured thereby : 72 Ga. 206 ; 76/727. May not prove 
by counsel that matters were omitted from former statement under advice : 
91 Ga. 169. 

The prisoner is not under examination, and his counsel has no right to ask 
him questions. The court might, at prisoner's request, permit questions to 
be put to him, as matter of discretion : 58 Ga. 214. The court may inform the 
jury that the prisoner is not subject to cross-examination without his con- 
sent: 85 Ga. 378. The court should not ask defendant if he meant to deny the 
testimony of witnesses : 82 Ga. 535. 

The statement cannot serve as a foundation for introducing otherwise inad- 
missible testimony: 88 Ga. 731. 

The jury are sworn to give a verdict according to the evidence. It is im- 
portant not to confound the statement with the evidence. In charging, the 
court should keep the evidence distinct from the statement, shaping the gen- 
eral tenor of the charge by the evidence alone and the law applicable to it, 
adding the statutory provision as to the statement, and, if there be a request, 
a charge on the statement: 88 Ga. 731 ; 94/13. 

It is better to give in charge the statute and there leave the matter: 73 Ga. 
581; 60/210; 64/127; 83/136; 86/108; 94/1. The courts should confine them- 
selves to the language of the statute upon the subject, and not indulge in 
extended comments upon the effect to be given to such statements: 87 Ga. 
174; 95/467. 

It is not error to charge that the jury may give the statement whatever 
weight they think it entitled to ; they may believe it in preference to the 
sworn testimony, or may disbelieve it; that it is not made under oath, and 
that defendant incurs no penalty for not speaking the truth: 71 Ga. 277; 
77/734, 775. 

The jury may believe all, or a part, or none of the statement, as they see 
fit: 65 Ga. 506; 66/90; 67/635. They are the exclusive judges of it: 75 Ga. 
862; 69/732; 48/163; 63/616; 59/249. They should be instructed that they 



g 1011 CALL OF THE DOCKET TO SENTENCE. 278 

Competency of -witnesses. 

may believe the statement in preference to the sworn testimony: 89 Ga. 528; 
93/43. And be left free to give it such credence as they think proper: 63 Ga. 
867, 031 ; 73/577. Error to charge that it can only avail him, when it is in con- 
flict, in material matters, with the sworn testimony: 82 Ga. 87; 83/136. 

When the omission to charge as to the statement did not hurt defendant, 
and the attention of the court was not called to it, and no request was made, 
a reversal was not required: 78 Ga. 106; 69/765; 64/318; 88/51. 

The court should charge all the provisions, and counsel should call attention 
to casual omissions: 92 Ga. 19. 

After a legal charge in regard to the statement, it was not the duty of the 
court to charge a theory which arose not from the evidence but from the 
statement : 79 Ga. 64. If there be a pertinent and legal request, such a charge 
should be given : 69 Ga. 732 ; 88/47. If counsel desire special instructions as 
to the statement, in addition to the general charge as to its effect, they should 
make requests: 66 Ga. Ill ; 87/527. Couched in proper terms: 95 Ga. 346. 

Court should not discredit statement by comparing it with the evidence : 
57 Ga. 503. Nor should the charge withdraw attention from the statement: 
87 Ga. 13; 94/1. 

Not error against accused to direct the jury to consider the statement in 
connection with the evidence, nor that the law " permits" it to go to the jury 
along with the evidence: 91 Ga. 255; 94/1. 

It is well enough for the jury to know that it is defendant's statutory right 
to have them instructed as to his statement : 83 Ga. 535. 

The statement authorized a charge upon the insufficiency of words as prov- 
ocation : 81 Ga. 645. 

Prisoner's statement that he was present at the homicide, was direct evi- 
dence of his presence : 62 Ga. 59. 



ARTICLE 20. 



COMPETENCY OF WITNESSES. 



§1011. (3854.) Persons not competent or compellable. 
2. No person, who in any criminal proceeding is charged with the 
commission of any indictable offense, or any offense punishable on 
summary conviction, is competent or compellable to give evidence 
for or against himself. 
C \rt S i"sec 8- No person shall be compelled to give testimony tending in any 
i, par. q. manner to criminate himself. 

This means, that when sworn as a witness he shall not be compelled to tes- 
tify to facts tending to criminate him ; it does not prevent the introduction of 
articles taken from his person, that tend to show guilt: 75 Ga. 413; 94/367. 
Discoveries made in searching prisoner, admissible: 81 Ga552; 69/36; 94/367. 

After defendant voluntarily exhibited a scar, not error to compel him to 
allow a physician to examine it in rebuttal: 68 Ga. 814. Accused cannot be 
compelled to criminate himself by acts or words, and it is error to require him 
to show his leg, its condition being material : 67 Ga. 76; 94/367. And to forci- 
bly place his foot in a track : 63 Ga. 669. Female may decline to answer 
Whether she is an inmate of a lewd house: 68 Ga. 360. Whether her child was 
legitimate: 74 Ga. 193. Nor whether he had served a term in the peniten- 



279 CALL OP THE DOCKET TO SENTENCE. j$ 1012, L018 



Competency of witnesses. 



tiary: 83 Ga. 647. Nor are road commissioners compelled to make answer 

that might subject them to a fine: 40 Ga. 688. 

If a witness refuses to answer fco part of a conversation, the whole should 
be excluded: 65 Ga. 525. 

4. Husband and wife shall not be competent or compellable to 

give evidence in any criminal proceeding for or against each other, ] ~~''[li^ 
except that the wife shall be competent, but not compellable, to 
testify against her husband, upon his trial for any criminal offense 
committed, or attempted to have been committed, upon her person. 
She is also a competent witness, to testify for or against her hus- 
band, in cases of abandonment of his child, as provided for in 
section 114 of this Code. 

The court may interpose to prevent a violation of this rule : 60 Ga. 509. 

Cohabitation under promise of marriage does not render her incompetent: 
41 Ga. 484. Wife by second marriage of a bigamist, competent: 61 Ga. 305; 
95/466. 

The fact of the wife's silence is within the rule : 60 Ga. 509. Wife of an ac- 
complice or joint defendant, competent, when husband not on trial : 75 Ga. 
356 ; 74/819 ; 69/13. Not competent on joint trial when the right to testify for 
each other was not reserved: 74 Ga. 431. Husband not competent on trial of 
man for adultery with his wife : 94 Ga. 587. Wife competent on trial of hus- 
band for whipping her: 76 Ga. 96. A letter written by the husband to his 
wife: 91 Ga. 729. 

Communications are protected after the relationship has ceased : 29 Ga. 470 ; 
41/613. 

5. No attorney shall be competent or compellable to testify, m^jo} 887 ' 
any court, for or against his client, to any matter or thing, knowl- 
edge of which he may have acquired from his client, by virtue of his 
relations as attorney, or by reason of the anticipated employment 

of him as attorney, but shall be both competent and compellable to 
testify, for or against his client, as to any matter or thing, knowl- 
edge of which he may have acquired in any other manner. 

Attorney not competent to prove that accused desired to include certain 
matters in his statement : 91 Ga. 169. 

State not the client of the attorney-general : 26 Ga. 614. 

§1012. (3856.) Persons who are incompetent witnesses . Persons who 
have not the use of reason, as idiots, lunatics during lunacy, and 
children who do not understand the nature of an oath, are incom- 
petent witnesses. 

Boy of ten, competent, if he understands the nature of an oath, of which the 
court is the judge : 79 Ga. 498 ; 47/524. A child six years of age examined and 
found to be incompetent : 76 Ga. 76. One of seven years allowed to testify : 
61 Ga. 35. 

§1013. (3857.) Drunkards. Drunkenness, which dethrones reason 
and memory, incapacitates during its continuance. 



§§ 1014-1018 CALL OF THE DOCKET TO SENTENCE. 280 



Examination of witnesses. 



§1014. (8858.) Evidence through interpreter. No physical defects 
in any of bhe souses incapacitates a witness. An interpreter may 
explain his evidence. 

Attorney acted as interpreter here : 25 Ga. 515. 

§1015. (3816.) Exemplifications. The certificate or attestation of 

any public officer, either of this State or any county thereof, shall 

give sufficient validity or authenticity to any copy or transcript of 

any record, document, paper of file, or other matter or thing in 

their respective offices, or pertaining thereto, to admit the same in 

evidence in any court of this State. 

Transcripts from books of treasurer and comptroller-general, admissible on 
trial of tax-collector: 53 Ga. 152. 

§1016. (3839.) Handwriting. Proof of handwriting may be re- 
sorted to in the absence of direct evidence of execution. In such 
case, any witness is competent to testify as to his belief, who will 
swear that he knows or would recognize the handwriting. The 
source of his knowledge is a question for investigation, and goes 
entirely to the credit and weight of his evidence. 

Witness must know the handwriting before he can testify to it: 86 Ga. 108; 
89/294. 

A letter identified by a witness who could not read, and two others com- 
pared with it by experts, and admitted: 77 Ga. 706. 

An unsigned letter : 91 Ga. 20. 



ARTICLE 21. 



EXAMINATION OF WITNESSES. 



§1017. (3863.) Separate examination. In all cases either party 
has the right to have the witnesses of the other party examined 
out of the hearing of each other. The court will take proper care 
to effect this object as far as practicable and convenient, but 
any mere irregularity shall not exclude the witness. 

This practice is as ancient as the trial of Susanna by Daniel: 27 Ga. 288. 

Old rule stated: 14 Ga. 55. This section cumulative: 51 Ga. 433. 

If defendant refuses to separate his witnesses, after notice from the court 
that if he refused they could not be sworn, he is not entitled to introduce them 
except upon special cause shown : 50 Ga. 585. 

A witness is not rendered incompetent because he has violated the rule and 
heard some of the testimony on the other side: 65 Ga. 330; 67/742; 86/108; 
89/394; 90/800. It is an irregularity : 65 Ga. 331. And goes to the credit of 
the witness: 14 Ga. 55. 

It is within the discretion of the court: 58 Ga. 545; 86/109; 94/76, 596; 
27/288; 80/170; 88/557; 66/508. 

§1018. (38f54.) Cross-examination of witnesses. The right of cross- 
examination, thorough and sifting, belongs to every party as to the 



281 CALL OF THE DOCKKT TO SENTENCE. L019-1Q21 



Examination of witu< 



witnesses called against him. Cf several parties to the same case 

have distinct interests, each may exercise this right. 

Cited : 77 Ga. 516. 

Prisoner and his counsel may not both cross-examine: 1 \ Ga. 18. 

When the purpose is to impeach a witness, great Latitude should be allowed : 
71 Ga. 129. 

Refusal to allow a more extended cross-examination here, not reversible 
error: 85 Ga, 73. 

When a witness under cross-examination volunteers to state a fact prejudi- 
Cal to defendant, all the court can do is to withdraw the fact : 89 Ga. L68. 

§1019. (8865.) Leading questions. Leading questions are generally 

allowed in cross-examinations, and only in these; but the courl may 
exercise a discretion in granting the right to the party calling the 
witness, and in refusing it to the opposite party, when, from the 
conduct of the witness, or other reason, justice requires it. 

Leading questions are within the discretion of the court: 41 Ga. 484, 507 ; 
20/153; 95/337. And no cause for a new trial, especially when the answer is 
harmless: 93 Ga. 43; 41/484, 507. Solicitor allowed to ask: 70 Ga. 265; 94/594. 
Judge may propound to a State's witness: 56 Ga. 385. But not so as to inti- 
mate opinion : 61 Ga. 359. 

A question not necessarily leading will not be held by this court to be objec- 
tionable: 87 Ga. 668. "Do you know that boy over there?" 89 Ga. 303, and 
" Was that in Randolph county?" 43 Ga. 368, not objectionable. " Did defend- 
ant play for money?" not strongly leading: 20 Ga. 153. "Did defendant 
attempt to strip up your clothes?" too leading: 12 Ga. 29. 

An impeaching witness forms no exception to the rule : 28 Ga. 395. Leading 
questions, affirmatory of his previous testimony, may be put to a recalled im- 
peached witness : 22 Ga. 499. Witness may testify on the point to which a 
rejected leading question related: 20 Ga. 153. A witness called and sworn, but 
not examined, may be introduced and led by the other party, unless he shows 
bias against the party calling him, or was sworn by mistake: 28 Ga. 200. 

§1020. (3866.) Memorandum in aid of witness' 's memory . A witness 
may refresh and assist his memory by the use of any written in- 
strument, or memorandum, provided he finally speaks from his 
recollection thus refreshed, or is willing to swear positively from 
the paper. 

The testimony of the witness given in the previous trial of a jointly indicted 
defendant, cannot be used to refresh his memory: 28 Ga. 199. 

§1021. (3867.) Opinions of witness. Where the question under 
examination, and to be decided by the jury, is one of opinion, any 
witness may swear to his opinion or belief, giving his reasons there- 
for; but, if the issue is as to the existence of a fact, the opinions 
of witnesses generally are inadmissible. 

When the question at issue is one of opinion merely, as that of sanity, sol- 
vency, personal identity, handwriting, age, etc., witness may give his opinion, 
coupled with the facts: 10 Ga. 513. Conjecture should be withheld: 3S Ga. 
297 ; 47/528. 

"Yonder comes Anderson and he will kill you," not admissible: 2 Ga. 181; 
25/210 ; 5/135. Nor is the opinion that party had a malicious intent : 30 Ga. 400. 



§§1022-1024 CALL OF THE DOCKET TO SENTENCE. 282 

Impeachment of witnesses. 

Nor whether the tone of voice, etc., did not cause witness to expect a difficulty : 
L8 Ga. 194. Nor what witness understood to be meant by the motion of a 
wounded man : 59 Ga, 738. Nor that " defendant would not have done it if he 
had boon in his right mind": 76 Ga. 453. Nor what deceased intended to do 
with a pistol 2 90 Ga. 311. Nor that witness's opportunities were as good as 
any other person's: 68 Ga. 695. Nor whether defendant was carrying on a 
lottery: 95 Ga. 330. "He appeared to be drinking," admissible: 31 Ga. 424. 
And that deceased was advancing on accused: 27 Ga. 288. After giving the 
facts of the homicide, witness may give his opinion as to the cause of death: 
71 Ga. -79 : 62/65. Witness familiar with the use of guns, may state the facts 
and give opinions as to whether a pistol had been snapped: 56 Ga. 114. And as 
to the length of time since a gun was fired off: 57 Ga. 102. Knowledge of de- 
fendant a long time and that he always acted like a sane man, facts upon which 
to base an opinion of sanity : 83 Ga. 647. " I heard a noise as if some one was 
kicking or knocking deceased in his back," admissible: 31 Ga. 262. The jury 
judge of the premises upon which the opinion is formed : 80 Ga. 786. 

§1022. (3868.) Experts. The opinions of experts on any ques- 
tion of science, skill, trade, or like questions, are always admissi- 
ble ; and such opinions may be given on the facts as proved by 
other witnesses. 

When the experience, honesty, and impartiality of the experts are un- 
doubted, their testimony is entitled to great weight and consideration. Not 
that it is so authoritative that the jury are bound by it. It is intended to aid 
them in coming to a correct conclusion : 31 Ga. 425. 

An expert wiio has observed none of the facts, should give his opinion on a 
hypothetical case similar to that before the jury: 59 Ga. 738. 

A practicing physician presumptively competent to give evidence as an ex- 
pert touching the effect of wounds : 92 Ga. 16. And course of a ball : 18 Ga. 641. 

§1023. (3876.) State of feeling and relationship. The state of the 
witness's feelings to the parties, and his relationship, may always 
be proved for the consideration of the jury. 

Ill will may w r eaken the evidence, it does not per se impeach. The jury 
measure its effects in the given instance: 59 Ga. 63. Witness may not be 
asked, on cross-examination, as to the particulars of a difficulty between him- 
self and the prosecutor, he not having denied the ill feeling: 61 Ga. 379 ; 9/121. 
The feelings of the prosecutor might bear on his credibility as a witness, but 
could not otherwise affect the question of the defendant's guilt: 74 Ga. 819. 
Unfriendly feeling towards the accused by the father-in-law of the prosecutor, 
not relevant: 63 Ga. 675. State, on cross-examination, may show that witness 
was friendly to others jointly indicted, and had aided the defense : 90 Ga. 474. 

Relationship considered in estimating the credit to be given to a witness : 
78 Ga. 91. 



ARTICLE 22. 



IMPEACHMENT OF WITNESSES. 



§1024. (3869.) Impeaching one's own witness. A party may not 
impeach a witness voluntarily called by him, except where he can 



288 CALL OF THE IK)CKKT TO SENTENCE. 88 L025, 1026 



Impeachment of witneteef. 



show to the court that fio has been entrapped by the witness by a 
previous contradictory statement. 

It is not sufficient that he shall have made contradictory statement* ; such 
statements must have deceived, and led the party complaining to introduce 

him: 53 Ga. 254. The rule applies to the State: 80 Ga. 754. 

The rule relates to the admissibility of evidence, and is for the court. It 
does not prohibit evidence to prove the facts to be otherwise than they have 
been stated to be by some of the party's own witnesses. In tin's way contra- 
diction is allowed : 79 Ga. 605 ; 59/63. 

§1025. (3871.) Impeached by disproving facts testified fo. A witness 
may be impeached by disproving the facts testified to by him. 

Experiments by starlight and lamps, not admissible: 1 Ga. 213. Diagram 
admitted without showing it to a witness whose evidence it contradicts: 
9 Ga. 121. 

The State may, after the defendant closes, prove the facts sworn to by an 
impeached witness to be true : 16 Ga. 200 ; 69/68. 

§1026. (3871,3872,3875.) By contradictory statements. A witness 
may be impeached by contradictory statements previously made by 
him as to matters relevant to his testimony and to the case. Before 
contradictory statements can be proved against him (unless they 
are written statements, made under oath, in connection with some 
judicial proceedings), his mind should be called with as much cer- 
tainty as possible to the time, place, person, and circumstances 
attending the former statement; and if in writing, the same should 
be shown to him, or read in his hearing, if in existence; and to lay 
this foundation, he may be recalled at any time. When thus 
impeached, he may be sustained by proof of general good character, 
the effect of the evidence to be determined by the jury. 

It is not necessary that the witness should absolutely deny the declarations 
imputed to him. He may be impeached when he says he does not recollect, if 
the subject-matter of the conversations be relevant to the issue : 1 Ga. 213. 

Contradictory statements as to matters not relevant to his testimony and 
to the case, inadmissible to discredit him: 90 Ga. 473; 87/516; 43/368. If his 
former testimony was inadmissible, it cannot be used to impeach him : 11 Ga. 
616; 44/209. 

To ask the witness whether he has ever said so and so, is too general : 33 Ga. 
24. The court referred to the jury the question whether the foundation had 
been laid, but it would have been more regular to have recalled the witness: 
23 Ga. 576. 

Sworn written statements need not be exhibited to the witness in laying the 
foundation : 33 Ga. 304. An affidavit used to contradict may be explained, and 
the witness may be recalled for that purpose. If it is untrue and she makes 
it without knowing its contents, and no reason to know them, she is unworthy 
of credit, but it is otherwise if the draftsman was at fault : 20 Ga. 156. Steno- 
graphic notes taken at the inquest, drawn out and proven, are admissible to 
contradict : 64 Ga. 375. 

What witness stated before the committing court may be proven by any 
one who heard it, as well as by the notes : 76 Ga. 626 ; 69/11. 

The witness may show r he was under fear when the contradictory state- 
ments were made : 43 Ga. 484. 



1 1087 CALL OF THE DOCKET TO SENTENCE. 284 

Impeachment of witnesses. 

The proof may be rebutted by proof of general good character for truth and 
standing in society. 72 Gra. 441. 

The witness may be supported by consistency in his statements: 20 Ga. 156. 
This broad rule was found to be unsound and has been generally considered as 
exploded: 83 GU. 531; 52/410: 93/450; 95/468. 

When two were tried jointly with the right to testify for each other, each 
could be impeached as a witness for the other, and a plea of guilty by one on 
an indictment for larceny was admissible to impeach him, but not to prove 
guilt in the case on trial: 71 Ga. 864. A wife, introduced by the husband on 
his trial for beating her, may be impeached by the State: 75 Ga. 577. 

Testimony offered avowedly to impeach, cannot be used in argument for a 
different purpose: 79 Ga. 91. 

A charge on the subject of sustaining a witness by proof of good character 
should not be made in the absence of testimony on which to base it : 93 Ga. 
160. If the court properly instructs the jury how to deal with impeaching 
testimony and its effect, it is not reversible error, in the absence of a request, 
to fail to give the rules as to the mode of impeachment: 91 Ga. 168. 

§1027. (3871,3873,3874.) By proof of general bad character. A 
witness may be impeached by evidence as to his general bad charac- 
ter. The impeaching witness should be first asked as to his knowl- 
edge of the general character of the witness, and next as to what 
that character is, and lastly he may be asked if, from that character, 
he would believe him on his oath. The witness may be sustained by 
similar proof of character. But the particular transactions, or the 
opinions of single individuals cannot be inquired of on either side, 
except upon cross-examination in seeking for the extent and foun- 
dation of the witness's knowledge. 

Cited: 87 Ga. 180. 

If witnesses have knowm him a long time, and never heard anything ill of 
him, they know his general character: 89 Ga. 761. A letter read by witness 
does not furnish sufficient knowledge of the character of accused : 75 Ga. 843. 

The court properly refused to allow counsel to explain to a witness what 
was meant by "general character," it not appearing what the explanation was : 
81 Ga. 768. 

Bad character formed in this State, and before removal therefrom, seven or 
eight years before the trial, may be shown : 82 Ga. 231. 

On a trial for seduction it was not error to charge that general bad charac- 
ter, or general bad character as to the subject-matter of inquiry, might be 
shown: 91 Ga. 255. 

On an indictment for rape the woman may be impeached by showing her to 
be a common prostitute or of ill fame: 3 Ga. 417. 

A life of moral turpitude is ground for disbelieving her: 48 Ga. 193. Record 
of conviction of larceny, admissible to impeach: 94 Ga. 85; 71/864; 73/251; 
92/459. But witness cannot be compelled to prove his conviction : 48 Ga. 116. 

Cannot impeach a witness by proof that he is a gambler: 22 Ga. 40. Nor of 
special acts of adultery: 61 Ga. 305. 

Witness may be supported by additional proof of the facts testified to by 
him: 16 Ga. 200. And by evidence going to his character generally, but not 
by disproving particular facts brought out by impeaching witnesses: 89 Ga. 
168 ; 64/345. Restoration of credit depends upon the nature and extent of cor- 



285 CALL OF THE DOCKET TO SENTENCE. g§ L028, 1029 

Order of argument. 



roboration: 17 Ga. 465. II* not corroborated, it is still for the Jury , whethe 

he is to be believed : 22 Ga. 479. 

§1028. Credibility of 'witnesses. The credibility of a witness ie a :jl (;,a - Mr7> 
matter to be determined by the jury under proper insl ruei Lone from 
the court. 

Juries are the exclusive judges of the credibility of the witnesses : 48Ga. 66; 

57/184; 69/45; 35/75; 47/297; 72/200; 80/16; 50/251 ; 89/445; 95/501. 

Witnesses are presumed to be credible unless impeached in the mode pre- 
scribed by law: 52 Ga. 290; 48/66, 163; 91/283. 

When an apparent discrepancy exists between the testimony of different 
witnesses, it is the duty of the jury to reconcile the whole together, if it can 
be done, so as not to impute perjury to any one. When witnesses agree as to 
the important fact testified to, slight discrepancies in the collateral attendant 
facts afford no ground to discredit them : 27 Ga. 685 ; 48/66 ; 57/185 ; 84/250 ; 
78/15. 

How far an impeachment is successful is a question for the jury : 64 Ga. 346 ; 
22/479. 

The jury cannot act upon their private and personal knowledge of the char- 
acter of a witness : 90 Ga. 266 ; 94/394. 

If a witness swear willfully and knowingly false in a material matter, his 
testimony ought to be rejected entirely, unless corroborated by the facts and 
circumstances of the case, or other credible evidence: 23 Ga. 576; 53/368; 
55/592; 59/63; 64/348. 

The rule applied where the false testimony was given on a former trial : 55 
Ga.592; 78/498; 89/528. When the former testimony was given under duress: 
69 Ga. 14, as modified : 89 Ga. 528. Fear of future violence to life or member 
may afford a moral explanation, and when it is satisfactory to the jury it may 
be believed by them, with or without corroborating circumstances : 89 Ga. 528. 

When the only witness in a case testifies falsely to a leading fact respecting 
which there could be no mistake, being corroborated by another witness or 
circumstances, as to immaterial matters, will not restore credit or authorize 
conviction : 23 Ga. 297. 

The manner of a witness may be considered — it is not always a safe criterion 
for judging the credit of a witness : 20 Ga. 156. An improbable statement may 
be made the subject of comment before the jury : 27 Ga. 649. 

The manner, interest or bias, the reasonableness or unreasonableness of the 
facts they relate, may be considered by the jury: 73 Ga. 84. 

It may be shown that a party assigned a false reason for his conduct : 17 Ga. 
356. And that he gave a false account at the inquest : 60 Ga. 258. 

Prosecutrix cannot be discredited by showing that some one induced her to 
prosecute : 87 Ga. 668. 

This verdict was supported by only one witness who was guilty of a crime 
involving moral turpitude, and the evidence tended to show that he had made 
contradictory statements and that his general character was bad ; — the jury 
believed him : 94 Ga. 399. 



ARTICLE 23. 

ORDER OF ARGUMENT. 



§1029. (4645.) Order of argument. After the testimony is closed -p"*^ 851 " 2, 
on both sides, the State's counsel shall open and conclude the argu- 



§1030 CALL OF THE DOCKET TO SENTENCE. 286 



Charge of the court. 



menl to t lie jury, except that, it' the defendant shall introduce no 
testimony, his counsel shall open and conclude after the testimony 
od the part of the State is closed. 

If defendant introduces any testimony at all, he loses the conclusion: 66 
Ga. 110. When two are on trial for an affray and one introduces testimony, 
the other does not. the State concludes: 13 Ga. 323. On a joint trial one de- 
fendant introduced and examined a witness and the other defendant also ex- 
amined him — State concluded: 59 Ga. 84. 

The introduction of prisoner's statement does not deprive him of the con- 
clusion : 48 Ga. 30. 

The solicitor may take any place on the side of the State he prefers: 
15 Ga. 476. 

The court should not limit defendant's counsel to a definite time over his 
protest that he could not do justice to his client's case within the prescribed 
time: 49 Ga. 255; 60/367. The length of the argument is not matter for pre- 
determination for the court. The proper practice stated: 60 Ga. 367. May be 
limited, in misdemeanors, under the new rules: 95 Ga. 470. Judge was silent 
when inquiry was made as to time: 89 Ga. 768. 

Counsel may allude to what has transpired in the case from the time it was 
called, through its entire progress: 72 Ga. 269. 

It is the duty of the court to prevent counsel from misstating the testi- 
mony, and from commenting on facts not in evidence: 10 Ga. 522; 11/253, 
616 ; 18/460 ; 27/649 ; 35/7 ; 43/368 ; 46/26 ; 60/210 ; 61/278 ; 86/406 ; 87/13. Highly 
reprehensible for counsel to get facts before the jury, by way of supposition : 
10 Ga. 522; 11/256, 629. Attention should be called to such irregularities and 
a ruling invoked : 65 Ga. 525 ; 70/767 ; 92/16 ; 90/143. If the court is not called 
on to interpose, and the accused is not prejudiced by the remark, the failure 
to restrict counsel is not good ground for new trial: 33 Ga. 98 ; 91/720. 

Improper remarks of solicitor: 88 Ga. 606; 89/396. 

Counsel ordered to his seat for improper interruptions of the argument : 
91 Ga. 19. 

Eulogizing Chief Justice who delivered an opinion, condemned: 90 Ga. 431. 

Not error for the court to say to the jury that the assertion of counsel as to 
their opinion of the evidence is not evidence: 52 Ga. 290; 95/472. 

Not error to properly correct counsel's mistake in quoting the testimony : 
58 Ga. 328. Counsel have the right to correct misrepresentations of the testi- 
mony, and the court should permit corrections to be made: 12 Ga. 295. 

Counsel may read law, and present their view of it, to the jury, in the hear- 
ing of the court, subject to the correction of the court in its charge: 55 Ga. 
304; 56/503; 65/707. 



ARTICLE 24. 



CHARGE OF THE COURT. 



A p Ct 42 186 °' §1030. (244.) Judges shall give viritten charges on request. The judges 

ptto °^ ^ ne su P er i° r courts shall, when the counsel for either party re- 

t quests it before beginning the charge, write out their charges and 

f l*/Yn*. read them to the jury, and it shall be error to give any other or ad- 

7 /"- if' ditional charge than that so written and read. 



287 CALL OK THK DOOKKT TO SKXTKXCK. $$ 1031, L082 



Charge of the court. 



The words " charges " arid "charge " CHibriWif! any and all final in-t ructions 
addressed by the court to the jury for the purpose of governing their action in 
making or aiding to make a finnl disposition of the case: 90 Ga. 217; 89/628. 

No verbal additions or explanations arc allowed: 88 Ga. 304; 89/188, 527. 
Sections of the Code may bo read as part of it, the judge noting accurately in 

his written charge the sections so read : 89 Ga. 527. A written addition to a 
written request, allowed: 63 Ga. 456. 

§1031. (245.) Shall be filed. The charge so written out and read,^**»f 

shall be filed with the clerk of the court in which it wan given, and 
shall be accessible to all persons interested in it; and the clerk shall 
give certified copies thereof to any person applying therefor, upon 
payment of the usual fee. 

AVhen written and read on request, it becomes an office paper. If written 
and read, but not on request, it is not ground of error that it was not filed : 
65 Ga. 507. 

§1082. (3248.) Judge- not to express opinion on the facts. It is error 5ct?iS?' 
for the judge of the superior court, in any case, during its progress, p-^2. 
or in his charge to the jury, to express or intimate his opinion as to 
what has or has not been proved, or as to the guilt of the accused; 
and a violation of the provisions of this section, shall be held by the 
Supreme Court to be error, and the decision in such case reversed, 
and a new trial granted with such directions as the Supreme Court 
may lawfully give. 

To make error, it must be affirmatively shown that the judge expressed an 
opinion in the hearing of the jury, in regard to the evidence submitted to them : 
42 Ga. 10. 

The court may enumerate acts constituting the essentials of the offense and 
instruct the jury that if they find those acts are established, they would be 
authorized to find the defendant guilty : 90 Ga. 437 ; 41/217 ; 58/336 ; 63/578 ; 
67/660; 80/236. 

There is a wide difference between resting the result of a trial upon facts 
which legally constitute the offense charged, and making it turn upon other 
facts which are merely evidence of the constituent facts : 63 Ga. 583 ; 23/579 ; 
56/503 ; 58/48, 226 ; 80/240. 

The whole charge may be considered to see whether an opinion was ex- 
pressed : 60 Ga. 264 ; 62/72 ; 68/615, 697 ; 80/240. "When it is in such shape as to 
intimate what the judge believes the evidence to be and that it makes defend- 
ant guilty, it is error: 38 Ga. 50; 95/485. 

A charge that intimates an opinion on the facts necessitates a new trial: 
63 Ga. 456, 459 ; 82/87. 

The rule was violated in these cases : To order defendant's witnesses arrested 
in presence of the jury, on account of what they had testified: 66 Ga. 157 : to 
intimate in the charge doubts as to the legal competency of certain evidence 
before them : 5 Ga. 86 ; 6/349 ; that if error was committed defendant could 
take the case to the Supreme Court : 15 Ga. 122; that if a certain fact was 
proved, it would be a strong circumstance going to show guilt : 40 Ga. 291 ; that 
the testimony of a State's witness on cross-examination did not amount to 
anything any way: 12 Ga. 142, 213; if you find certain facts, defendant is 
guilty and you ought to find him so : 34 Ga. 262 ; 63/578 ; 57/503 ; deceased had 
a right to be mad : 37 Ga. 80; to seem to assume that defendant's conduct was 
criminal: 58 Ga. 551; to ask a witness, "Have you not heard that defendant 



§1083 CALL OF THE DOCKET TO SENTENCE. 288 

The verdict. 

once boat his wife?" 61 Ga. 359; "that law writers say that a chain of circum- 
Stances cannot lie, whilst a witness may": 54 Ga. 157; "I have allowed the 
prisoner great latitude, that he might show, if he could, his innocence" : 57 Ga. 
66; "You should find him guilty," even when the proof of guilt was over- 
whelming: 57 Ga. 503; that the facts make not a slight but a strong circum- 
stance from which they could infer that the pistol was concealed: 40 Ga. 291; 
56/503. 

Opinion expressed in these cases: 45 Ga. 477; 29/36; 56/385, 61; 59/249; 
58/36. 224 ; 63/457 ; 65/506 ; 95/477. 

Opinion expressed, but new trial not ordered, the verdict being inevitably 
correct: 34 Ga. 262; 57/503. 

The rule not violated : An expression as to the legal effect of certain facts if 
proved, but not as to what was proved: 71 Ga. 164; hypothetically reciting 
certain things in evidence: 83 Ga. 45; to declare the law applicable to certain 
facts: 86 Ga. 396; to state what had been proved, where, pending argument, 
counsel differed about it : 80 Ga. 468 ; 89/316. Statement in ruling out evi- 
dence : 90 Ga. 430; that the State claims so and so: 92 Ga. 66; when the 
presumption is one of fact, that the jury may, but not that they should, 
find defendant guilty upon it : 63 Ga. 585 ; presenting to the jury the truth of 
what a witness swore: 43 Ga. 368; arguing to the jury, in the charge, the 
improbability of a third person being the thief: 33 Ga. 281 ; passing upon the 
facts in the decision of a legal question as it arises : 46 Ga. 26 ; as to the grade 
of the offense, when not done by way of direction : 31 Ga. 424 ; 14/709 ; 52/607 ; 
an explanation of the nature and effect of evidence : 10 Ga. 48. 

No violation in these cases : 72 Ga. 269 ; 66/160 ; 60/264. 

No expression here that requires a new trial : 62 Ga. 164 ; 56/114 ; 52/290. 

AVhat the judge stated as to an immaterial matter about which there was 
no dispute and no conflict in the evidence, will not necessitate a new trial: 
65 Ga. 621 ; 30/426. 

Court may not group certain facts less in extent than the whole contents of 
the indictment, and submit their truth or falsity as decisive of guilt or 
innocence : 58 Ga. 336. 



ARTICLE 25. 

THE VERDICT. 



C \rt 5t i"sec §1033. (4646, 3561.) Jury judges of law and facts ; form and con- 
Co$b T m * truct i° n of verdicts. On the trial of all criminal cases the jury- 
shall be the judges of the law and the facts, and shall give a general 
verdict of "guilty" or "not guilty." Verdicts are to have a reason- 
able intendment, and are to receive a reasonable construction, and 
are not to be avoided unless from necessity. 

It was not error to charge the jury that they were judges of the law and 
the fact, but that did not mean that they might do as they pleased, or might 
disregard the charge of the court: 40 Ga. 689; 53/429. 

Jurors should receive the law from the judge, and they do wrong if they do 
not receive his charge as law: 41 Ga. 217. They are bound by the law, as it is 
written and given to them in charge by the court. That is the means, and the 
only means, by which they are to find out what the law is, just as the evidence 
put before them is the only means by which they are to learn the facts. But 



289 CALL OF THE DOCKET TO SENTENCE. 1068 

The verdict. 

when they have thus got the law from the court and the facts from the wit- 
nesses, they are to judge of them ; they are, to Hay, what are the facts according 
to the testimony, what is the law according to the charge of the court,. 
They are then to judge of what the verdict ought to be, considering what the 
law is, and what the facts are, and. find a verdict accordingly. The result of 
this application of the facts to the law is the exclusive province of the jury: 
49 Ga. 485. The courts are bound to decide and administer the law, and juri- 
are bound to conform thereto : 52 Ga. 83. It is correct to charge the jury, 
"You are the exclusive judges of the testimony. You take the law from the 
court, the testimony from the witnesses, see what it is, and apply one to 
the other. You judge of them, and they enable you to arrive at the truth" : 
48 Ga. 66. 

And there was no error in the charge that they were the judges of the law 
and the facts, so as to enable them to apply the law to the facts, and bring in a 
general verdict, but they had no right to make law ; the law was laid down in 
the Code; it was the province of the court to construe the law and give it in 
charge, and of the jury to take the law as given, apply it to the facts as found 
by them, and bring in a general verdict: 42 Ga. 9; 52/290; 56/61; 66/517, 539; 
64/453; 81/140; 91/272. 

It is error to charge the jury that they are in no sense judges of the law: 
56 Ga. 61. In the application of the law to the facts, they are judges of the 
law and facts, and whilst they should pay respect to the opinions of the judge, 
yet they have the right to make such application, according to their own con- 
victions of the truth : 52 Ga. 607. 

It is not an open question that the law goes to the jury from the bench, 
just as facts go to that body from the witnesses : 77 Ga. 771 ; 75/382. 

They are no more judges of the law and the facts in a case of circumstan- 
tial evidence than in other cases: 65 Ga. 621. 

A special verdict is when the jury find certain facts to exist, and leave the 
court to determine whether or not, according to the law which controls those 
facts, the defendant is guilty : 17 Ga. 498. A partial verdict is one of convic- 
tion as to a portion of the charge, and acquittal or silence as to the residue : 
83 Ga. 379. 

" Guilty on the first count" is a general verdict: 14 Ga. 8 ; 46/209. "We, the 
jury, find, from the evidence produced, that the prisoner is guilty of murder." 
is a general verdict : 17 Ga. 498 ; 26/276. 

The usage in delivering the verdict is to write it on the indictment, which, 
being signed by the foreman, is handed to the solicitor-general in open court 
after the jury has been called, and,whenpubliclyread,itis recorded: 14 Ga. 18. 

It is the right of defendant to be present when the verdict is received : 
53 Ga. 137 ; 55/521 ; 59/514 ; 60/430 ; 67/653. It may be received in the absence 
of his counsel, the prisoner being present: 76 Ga. 30; 67/739. If defendant, on 
bail, voluntarily absents himself, he cannot complain if the trial proceed, or 
the verdict is received in his absence. Especially if his counsel is present and 
waives the client's right to be present: 83 Ga. 167; 67/653. It may be re- 
ceived in his absence when he has agreed for the jury to disperse, leaving the 
verdict with the foreman to be returned by him : 59 Ga. 513. 

It has not been the practice to have the fact of prisoner's presence 
entered of record. His presence is assumed unless the contrary appears : 
60 Ga. 631 ; 53/137. 

It is the right of defendant to demand the polling of the jury, and, on 

demand for it, the legality of the verdict is only completed by the poll : 52 Ga. 

479; 63/306; 68/788. Defendant may waive the right by his act or consent 

inconsistent with it: 68 Ga. 788. The proper time to demand the right to 

19 



1 1088 CALL OF THE DOCKET TO SENTENCE. 290 



The verdict. 



poll the jury is after the publication of the verdict and before the dispersion 
of the jury and recording the verdict: 49 Ga, 219; 52/479. The better course 
is to begin with a distinct reading of the verdict, calling the attention of the 
jury to it, and then, calling them seriatim by name, propound to each the 
question: "What say you, Mr. Juror; is this your verdict, or is it not?" 
31 Ga. 641 ; 62/87; 64/465; 68/785; 49/211. 

Defendant and his counsel should attend to the polling of the jury, and call 
attention to any omission: 73 Ga. 603. A single juror was overlooked until 
they were discharged ; he was called and polled before he left the presence of 
the court and mingled with the crowd ; verdict sustained. After the jury has 
been discharged and dispersed, and mingled with the crowd, it is too late to 
cure the omission: 68 Ga. 785. 

On being polled a juror hesitated, but recognized the verdict as his: 64 Ga. 
453. The only inquiry is, does he agree to it? The law does not inquire as to 
his reluctance or willingness: 81 Ga. 332. 

When the jury w r ere all in the box and heard the verdict read, but w T ere not 
called over when it was rendered, it was not ground for a new trial: 22 Ga. 
213 ; 58/329. 

The court should instruct the jury as to the form of their verdict, and may 
recall them for the purpose: 93 Ga. 123; 92/66. It may be done emphatically 
but fairly: 20 Ga. 156; 67/658. 

The court should not receive an illegal verdict : 46 Ga. 647 ; 52/287 ; 58/545 ; 
26/593 ; 28/367 ; 55/191 ; 87/549. When not in proper form, it should be cor- 
rected, and the jury may have the solicitor to do so for them: 87 Ga. 149, 530. 
False orthography corrected — "count" for "account": 14 Ga. 8. Verdict for 
involuntary manslaughter should have been received : 78 Ga. 192. 

They are to have a reasonable intendment, and are not to be set aside unless 
from necessity : 83 Ga. 379. 

They should be construed in connection with the indictment : 62 Ga. 167. 
And may be aided and rendered certain by reference to the indictment: 
51 Ga. 144. 

If some of the counts are good and others are bad, on a general verdict of 
guilty, judgment will be awarded on the good counts: 10 Ga. 48; 40/529. 

A general verdict of guilty convicts of the highest grade of offense charged : 
10 Ga. 48; 12/293 ; 40/533 ; 43/218; 55/132; 86/396; 52/565. 

Whenever defendant is charged with the major offense and the evidence 
does not support it, the jury may convict of any minor offense which is 
included in the major and to which the testimony applies: 14 Ga. 55; 74/433; 
76/809. As, for an assault with intent to commit a rape, under an indictment 
for rape : 1 1 Ga. 241 ; 14/55 ; manslaughter — voluntary or involuntary — under 
an indictment for murder: 1 Ga. 222; 9/264; for shooting at another, under 
an indictment for an assault with intent to murder by shooting at another: 
70 (hi. 720; assault and battery, under an indictment for stabbing: 25 Ga. 396; 
and, if the battery be charged, under an indictment for assault with intent to 
murder : 12 Ga. 350 ; adultery, under a charge of seduction : 48 Ga. 192. 

A verdict for manslaughter on an indictment for murder means the highest 
grade of manslaughter: 50 Ga. 128. 

A verdict for involuntary manslaughter means the highest grade of invol- 
untary manslaughter: 78 Ga. 192. But see 38 Ga. 117; 83/380. 

A conviction of the lesser offense is an acquittal of the major offense 
charged, unless set aside at prisoner's instance: 1 Ga. 222; 22/546; 26/579; 
58/200; 88/91. 

Where there are two counts, a general verdict of guilty will suffice, without 
specifying the count on which it rested : 68 Ga. 339 ; 58/577. 



291 CALL OF THE DOCKET TO SENTENCE. 1084-1 



Where there is doubt as to the grade, verdict should be for the Lowed 
charged: 59 Ga. 307. [f the evidence is consistent with any one of three 

offenses charged, a conviction of the highest is not warranted : S2 Ga. 441. 

H. and M. alone of several defendants were put on trial. II. was acquitted 
by name. As to M., the verdict was "We, the jury, find the defendant guilty." 
It was sufficiently certain: 2 Ga. 137. When, of two jointly indicted, one only 
is arrested, arraigned and tried, a verdict, "We, the jury, find the defendant 
guilty," is sufficiently certain: 25 Ga. 494. When one of the defendant-; only 
is on trial, a general verdict of guilty applies to him: 55 Ga. 599; 70/013; 
66/592. The legal effect of "guilty, and that he be imprisoned in the peni- 
tentiary at the mercy of the court" : 54 Ga. 242. 

On a joint trial separate verdicts may be rendered and treated as one: 
59 Ga. 84. 

When two were jointly indicted, arraigned, and pleaded not guilty, and the 
verdict found "the prisoner at the bar guilty," it was a nullity: 54 Ga. 249. 
"Guilty of receiving stolen goods," was bad: 55 Ga. 191. Avoid verdict on 
an indictment for forgery: 28 Ga. 367. 

Guilty of " lawful riot" is in effect not guilty : 74 Ga. 833. 

A motion for a verdict in defendant's favor is not allowable: 15 Ga. 205; 
41/484; 46/322. 

If the jury disperse and the State fails to show that defendant sustained no 
injury, the verdict is a nullity : 71 Ga. 553. 

The verdict may be entered on the minutes at the next term, by an order 
nunc pro tunc: 3 Ga. 18. 

An agreement that if the jury should agree that night they might return a 
sealed verdict to the court and disperse, did not extend to a verdict found the 
next day : 53 Ga. 137. 

§1034. (4646 a.) Recommendation to mercy. In all capital cases, Act ^ 875 * 
other than those of homicide, when the verdict is guilty, with a 
recommendation to mercy, it shall be legal and shall mean impris- 
onment for life. 

§1035. (4675.) Jury may find the attempt . Upon the trial of an in- Cobb. 840. 
dictment for any offense, the jury may find the accused not guilty 
of the offense charged in the indictment, but, if the evidence war- 
rants it, guilty of an attempt to commit such offense, without any 
special count in the indictment for such attempt. 

When force is an element of the crime, there is no substantial difference 
between an assault with intent, and an assault with attempt to perpetrate 
the offense : 14 Ga. 55. 

No such crime as an attempt to make an assault: 53 Ga. 205. 

Under an indictment for simple larceny in stealing a slave, conviction of 
the attempt, without a special count for that purpose: 10 Ga. 422. 



ARTICLE 26. 

THE SENTENCE, 



81036. Punishment: recommendation of the jury. All felonies, Actsisss. 
except treason, insurrection, murder, manslaughter, assault with 
intent to rape, rape, sodomy, foeticide, mayhem, seduction, arson. 



8§1087-4089 CALL OV THE DOCKET TO SENTENCE, 



292 



Tho sentence. 



burning railroad bridges, train wrecking, destroying, injuring or 
obstructing railroads, perjury, false swearing, and subornation of 
perjury and false Bwearing, shall be punished by imprisonment and 
labor in the penitentiary for the terms set forth in the several sec- 
tions in this Code prescribing the punishment of such offenses; but 
on the recommendation of the jury trying the case, when such rec- 
ommendation is approved by the judge presiding on the trial, said 
crimes shall be punished as misdemeanors. If the judge trying the 
case Bees proper, he may, in his punishment, reduce such felonies to 
misdemeanors. 
Cobb. $37. §1087. (4656.) Penitentiary at discretion; jury recommendation. In 
all eases where the term of punishment in the penitentiary is discre- 
tionary, the court shall determine that punishment, paying due 
respect to any recommendation which the jury may think proper to 
make in that regard. 

It must be an extreme case to induce or even warrant this court in inter- 
fering with the sentence: 28 Ga. 576; 35/241. When the limits are not ex- 
ceeded, this court is not willing to control the discretion of the court below: 
34 Ga. 5; 47/297. Five years when it might have been ten, not cruel and 
excessive: 60 Ga. 284. 

The jury inquired of the court whether they could recommend to mercy, 
and he, in reply, read this section: 80 Ga. 451. It was not error to give this 
section to the jury in the general charge: 89 Ga. 807. 

Cobb. 842. §1038. (4697.) Form of sentence. In sentencing a person convicted 
of an offense subjecting him to penitentiary imprisonment, the judge 
shall frame the sentence so as to authorize his confinement and 
labor in the penitentiary, or at such other place as the Governor may 
direct. 

A sentence preceded by a statement of the case need not name the offense 
in the body of it, nor need it be signed or dated if entered on the minutes of 
that day and they be signed by the judge: 60 Ga. 430. 

Act J^ s^ ' 5 ■ f, '' §1039. (4310.) Misdemeanors , how punished . Every crime declared 
Im^M 4 ' t° De a misdemeanor is punishable by a fine not to exceed one 
thousand dollars, imprisonment not to exceed six months, to work 
*)vm***" • in the chain-gang on the public works, or on such other works as 

x k[-*y the county authorities may employ the chain-gang, not to exceed 
twelve months, and any one or more of these punishments may be 
ordered in the discretion of the judge: Provided, that nothing herein 
contained shall authorize the giving the control of convicts to private 
persons, or their employment by the county authorities in such me- 
chanical pursuits as will bring the products of their labor into com- 
petition with the products of free labor. 

The streets of a city are public works : 55 Ga. 435. When in the alternative, 
the imprisonment is part of the punishment and cannot exceed six months: 
88 Ga. 91. 



298 CALL OF THE DOCKET TO SENTENCE. g§1040, 1041 

The sentence. 



If It be to enforce the payment of the fine, the imprisonment may be unlim- 
ited, and the imprisonment docs not discharge the fine, although the prisoner 
may be afterwards released: 88 Ga. 99; 22/98; 48/335. 

§1040. (4712.) Attempts, how ptmished. Ifanyperson shall attempt °° w 

to commit a crime, and in such attempt shall do any act toward the 
commission of such crime, but shall fail in the perpetration thereof, 
or shall be prevented or intercepted from executing the same, he 
shall, in cases where no provision is otherwise made in this Code-, or 
by law, for the punishment of such attempt, be punished as follows: 

First. The attempt to commit a crime punishable with death, shall 
be punished by imprisonment and labor in the penitentiary for not 
less than two years nor more than seven years. 

Second. The attempt to commit a crime punishable by imprison- 
ment and labor in the penitentiary for not less than four years, shall 
be punished by imprisonment and labor in the penitentiary for not 
less than one year nor more than four years. 

Third. The attempt to commit a crime punishable by imprison- A £%}/ :1 ' 
ment and labor in the penitentiary for not less than three years, 
shall be punished by imprisonment and labor in the penitentiary for 
not less than one nor more than two years. 

Fourth. The attempt to commit a crime punishable by imprison- 
ment and labor in the penitentiary for not less than two years, shall 
be punished by imprisonment and labor in the penitentiary for one 
year. 

Fifth. The attempt to commit a crime punishable by imprisonment *p Ct | 3 1877 ' 
and labor in the penitentiary for not less than one year, shall be 
punished as a misdemeanor. 

Sixth. The attempt to commit a felony not falling under any of 'p ^ 1877 ' 
the foregoing provisions, shall be punished by imprisonment and 
labor in the penitentiary for not less than one year. 

Seventh. The attempt to commit a misdemeanor shall be punished ^ ct | 3 1S77 ' 
in the same manner as the misdemeanor which was attempted is 
punishable. 

The object of this section is to punish intents to commit crime, if they are 
demonstrated by an act. Attempt here is synonymous with intend. To take 
the impression of a key for the purpose of breaking and entering a store to 
steal, was an act towards the commission of it: 26 Ga. 497. 

These penalties apply whether the indictment be for the attempt, or some 
section for the offense, and only the attempt be found by the jury: 58 Ga. 200. 

Cited : 90 Ga. 452. 

§1041. (4653.) Several imprisonments to be successive. Where a per- Cobb » S3 ^- 
son shall be prosecuted and convicted on more than one indictment, 
and the sentences are imprisonment in the penitentiary, such sen- 
tences shall be severally executed, the one after the expiration of 
the other; and the judge shall specify in each the time when the 
imprisonment shall commence and the length of its duration. 



§§ UUlM04o CALL OF THE DOCKET TO SENTENCE. 294 

Tho sentence. 



Oobb>8 §1042. (4676.) Conviction of second offense, longest time. If any 

person, who has been convicted of an offense and sentenced to con- 
finement and labor in the penitentiary, shall afterwards commit a 
crime punishable by confinement and labor in the penitentiary, he 
shall be sentenced to undergo the longest period of time and labor 
prescribed for the punishment of the offense of which he stands 
convicted. 

The allegation that it is for the second offense is for the jury: 26 Ga. 614. 
Ste b M»; §1048. (4662.) Death by hanging. The sentence of death shall be 
j^^'^i executed by hanging the offender by the neck until he is dead. The 
**■ execution of the sentence shall be in private, and witnessed only by 

the executing officer, a sufficient guard, the relatives of the criminal, 
and such clergymen and friends as he may desire. The place for 
such execution shall be provided by the ordinary of each county. 
The judge passing the sentence shall order the execution to be in 
private, and may take such steps as he thinks best to secure the exe- 
cution of the sentence, and to determine when death supervenes. 

It is proper to ask defendant if he has anything to say why judgment of 
death should not be pronounced, but the omission to ask it will not work a 
new trial : 11 Ga. 257 ; 28/576. 

bb,840. §1044. (4669.) Sentence shall specify time and place. When a con- 
vict is sentenced to the punishment of death, the court shall specify 
the time and place of execution in the sentence. The time shall not 
be less than twenty days nor more than sixty days from the date of the 
sentence. If the convict be a female, who, at the time, is quick 
with child, the court shall appoint a day that will arrive after she 
shall have been delivered of the child. 

If the time appointed be less than twenty days, prisoner should be re- 
sentenced : 2 Ga. 213. 

Cobb, 839. §1045. (4667.) Suspension ivhen convict is pregnant. If a female 
convict sentenced to the punishment of death shall be found preg- 
nant with child, the sheriff, with the concurrence and assistance of 
the ordinary, shall select one or more physicians, who shall make 
inquisition, and if, upon such inquisition, it appear that she is quick 
with child, the sheriff shall suspend the execution of the sentence, 
and make report of the inquisition and suspension of execution to 
the presiding judge of the circuit, who shall cause the same to be 
entered on the minutes of the superior court of the county where 
the conviction was had. And at any time thereafter, when it shall 
appear to said judge that said convict is no longer quick with child, 
he shall issue a new warrant directing the sheriff to do execution of 
the sentence, at such time and place as the judge may appoint and 
direct in the warrant, which the sheriff shall be bound to do accord- 
ingly. And the judge shall cause the new warrant and other pro- 
ceedings in the case to be entered on said minutes. 



295 CALL OF THE DOCKET TO SENTENCE. j$ 1046-1< 

The sentence. 



§1046. (4008.) Warrant to issue if execution not done. Whenever, 00 

for any reason, any convict sentenced to the punishment of death 
shall not have been executed pursuant to such sentence, and the 
same shall stand in full force, the presiding judge of the superior 
court where the conviction was had, on the application of the solic- 
itor-general of the circuit, or other person prosecuting for the State, 
shall issue a fikbeas corpus to bring such convict before him; or if 
such convict beat large, said judge, or any judicial officer of this 
State, may issue a warrant for his apprehension; and upon the con- 
vict being brought before the judge, either by habeas corpus or under 
such warrant, he shall proceed to inquire into the facts and circum- 
stances of the case, and if no legal reason exists against the execution 
of the sentence, he shall sign and issue a warrant to the sheriff of 
the proper county, commanding him to do execution of such sen- 
tence at such time and place as shall be appointed therein, which 
the sheriff shall do accordingly ; and the judge shall cause the pro- 
ceedings to be entered on the minutes of the superior court of the 
county. 

A sentence may be passed in vacation, under this: 50 Ga. 483 ; 2/294. 

§1047. (4000, 4095.) Sentence suspended on becoming insane after con- c 8 oJ b ' 838, 
viction. If, after any convict shall have been sentenced to th^iw <fa< aJ 
punishment of death, he shall become insane, the sheriff of the 
county, with the concurrence and assistance of the ordinary thereof, 
shall summon a jury of twelve men to inquire into such insanity. 
The following oath shall be administered to the jury, to wit: " You, 
and each of you, do solemnly swear (or affirm) that you will well 
and truly try this issue of insanity between the State and A. B., now 
condemned to die, and a true verdict give according to the evidence. 
So help you God." If it be found, by the inquisition of such jury, 
that the convict is insane, the sheriff shall suspend the execution of 
the sentence, and make report of the inquisition and suspension of 
execution to the presiding judge of the circuit, who shall cause the 
same to be entered on the minutes of the superior court of the 
county where the conviction was had. 

Will a certiorari lie to review this proceeding? 47 Ga. 549. 

Evidence of acts, etc., before conviction, legitimate only as explanatory of 
acts after conviction : 47 Ga. 549. 

§1048. (4000a, 4000b.) Insane convict committed to the Lunatic Act £, 1874 » 
Asylum. When any person shall, after conviction of a capital crime, 
become insane, and shall be so declared in accordance with the pro- 
visions of the preceding section, the judge shall certify the fact, and 
the convict shall be received into the Lunatic Asylum, there to be 
safely kept and treated as other adjudged insane persons. All the 
provisions of the law relating to insane persons under sentence of 




§§1049-1061 CALL OF THE DOCKET TO SENTENCE. 296 

Tho sentence. 

imprisonment in the penitentiary, shall apply to the class of cases 
herein provided for, so far as applicable. 

j M £1049. (4606, 4666c.) Resentence and warrant on recovery. If the 

convict mentioned in the preceding section should recover, the fact 
shall be at once certified by the superintendent to the judge of the 
court in which the conviction occurred. Whenever it shall appear 
to the judge by said certificate, or by inquisition or otherwise, that 
the convict has recovered and is of sound mind, he shall have the 
convict removed to the jail of the county in which the conviction 
occurred, or to some other safe jail, and shall pass sentence, either 
in term time or vacation, upon the criminal, and he shall issue a 
new warrant, directing the sheriff to do execution of the sentence at 
such time and place as may be named in the warrant, which the 
sheriff shall be bound to do accordingly. The judge shall cause the 
new warrant, and other proceedings in the case, to be entered on the 
minutes of said superior court. 

Rjrtfl'sec §1050. (4691.) Conviction of certain crimes disqualifies to vote or hold 
■2, par. i. ff\ cc , a person who has been convicted in any court of competent 
jurisdiction, of treason against the State, of embezzlement of public 
funds, malfeasance in office, bribery or larceny, or of any crime in- 
volving moral turpitude, punishable by the laws of this State with 
imprisonment in the penitentiary, unless such person shall have been 
pardoned, shall not be permitted to register, vote, or hold any office, 
or appointment of honor or trust in this State. 

C \rt S \"r • §1051. (5112.) Power and duty of governor as to reprieves and par- 
l, par. 12. d ons . The Governor shall have power to grant reprieves and pardons, 
£S)*,~to commute penalties, remove disabilities imposed bylaw, and to 
remit any part of a sentence for offenses against the State, after 
conviction, except in cases of treason and impeachment, subject to 
such regulations as may be provided by law relative to the manner 
of applying for pardons. Upon conviction for treason he may sus- 
pend the execution of the sentence and report the case to the General 
Assembly at the next meeting thereof, when the General Assembly 
shall either pardon, commute the sentence, direct its execution, or 
grant a further reprieve. He shall, at each session of the General 
Assembly, communicate to that body each case of reprieve, pardon 
or corn mutation granted, stating the name of the convict, the offense 
for which he was convicted, the sentence and its date, the date of 
the reprieve, pardon or commutation, and the reasons for granting 
the same. He shall take care that the laws are faithfully executed, 
and shall be a conservator of the peace throughout the State. 

Delivery and acceptance: 44 Ga. 379. Fraud vitiates: 44 Ga. 357. 
The effect of a pardon is to restore the citizen to the condition in which he 
was hefore conviction. The effect as to a remitted fine : 1 Ga. 606 ; 35/285, 344. 



297 CALL OF THE DOCKET TO SENTENCE. L052-1064 

The sentence. 

A law that provides for a change or commutation of the sentence by other 

authority than the Governor, is unconstitutional : 59 Ga. 802. 

§1052. (4660.) Convicts confined in jail till sent for by pr/niUut.l.frry (: : 
guard. When any person may be convicted of an offense which sub- 
jects him to confinement in the penitentiary, it shall be the duty of 
the presiding judge, by his sentence, to order the convict into cus- 
tody, to be safely kept in jail; or if there be no jail in the county, 
then in the nearest jail, or under a suitable guard, until he shall be 
demanded by a guard to be sent from the penitentiary for the 
purpose of conveying him to the penitentiary. 

§1053. (4658.) Clerk to notify keeper of sentence. The clerk of the Cobb, 837. 
superior court of the county, where such person may be convicted 
and sentenced, shall notify the principal keeper of the penitentiary, 
immediately thereafter by mail, of the conviction and sentence, and 
that the convict is detained in the county jail, or under guard, sub- 
ject to the order of the keeper. 

§1054. (4657.) Convicts soon and safely sent to penitentiary. Such CoDb - 83T - 
convict shall, as soon as possible after conviction, together with a 
copy of the record of his conviction and sentence, be safely con- 
veyed to the penitentiary by a guard to be sent therefrom for that 
purpose, and therein be safely kept during the term specified in the 
sentence of the court. 



§§ LO55-1057 NEW TRIALS, AND THE SUPREME COURT. 298 



When now trial will, and will not be granted. 



NEW TRIALS, AND THE SUPREME COURT. 



ARTICLE 1. 

WHEN NEW TRIAL WILL, AND WILL NOT BE GRANTED. 

Cobb.s&n. §1055. (4646.) None granted on acquittal. On the acquittal of the 
defendant, no new trial shall, on any account, be granted by the 
court. 
C \rt S i"-ec §1056. (5018.) Power to grant on conviction is preserved. The power 
•2, par. i. f the judges to grant new trials in case of conviction is preserved. 

The ground ought, in "general, to be something foreign to, or dehors the 
record: 19 Ga. 1. 

The following are not good grounds : Refusal to arrest judgment : 64 Ga. 61 ; 
81/144; overruling demurrer to an indictment: 91 Ga. 164,234; 92/451,472, 
480 ; 83/166, 616 ; defects in an indictment : 93 Ga. 47 ; infliction of unauthor- 
ized penalty : 87 Ga. 149 ; 63/678 ; 72/262 ; 75/482 ; 93/169 ; the finding against 
a plea of misnomer: 92 Ga. 453; 62/395. 

Parol evidence not heard in support of the motion : 49 Ga. 103. 

§1057. (3713.) When verdict is contrary to evidence, etc. In any case 
when the verdict of a jury is found contrary to evidence and the 
principles of justice and equity, the presiding judge may grant a new 
trial before another jury. 

If a verdict be contrary to the testimony and principles of equity and jus- 
tice, the presiding judge may grant a new trial, and in doing it he exercises a 
sound discretion : 49 Ga. 16, 17. It is to be exercised according to legal princi- 
ples : 76 Ga. 592. And it is when he abuses it that an error of law is committed. 
If he refuses a new trial when proper and legal grounds exist, or grants one 
when proper and legal grounds do not exist, he has committed an error of law: 
49 Ga. 16. 

It is only when he has committed an error of law that the jurisdiction of the 
Supreme Court arises : 49 Ga. 17 ; 63/339 ; 91/188. 

The question before the jury is, does the evidence show beyond a reasona- 
ble doubt his guilt? Before a judge on a motion for a new trial, have the 
jury found him guilty with such slight evidence of guilt as to indicate pas- 
sion, prejudice, mistake, carelessness or the like on their part? Before this 
court it is, has the judge so plainly erred in his judgment, as to make his de- 
cision an error of law : 52 Ga. 334. 

The discretion of the judge is a large element in considering the motion: 
47 Ga. 589. 

His discretion will not be controlled unless grossly abused: 57 Ga. 606; 
60/594 ; 62/157, 560 ; 3/310. Even when the solicitor favors it : 65 Ga. 422. 
Unless the principles of justice imperatively.- demand it: 33 Ga. 131. 

When there is evidence to support the verdict, and it is not against law, or 
the charge of the court, and there is no error in the rulings of the court, a new 



299 NEW TRIALS, AND THE SUPREME COURT. &§ 1058, I 60 



When new trial will, and will not I*'- granted. 



trial will not be granted: L2Ga.882; 26/622; 28/60; 80/427; 81/280,425; 88/24, 

98; 35/100; 43/485; 45/44; 48/67, 506; 49/306; 86/427. 

When the evidence conflicts and there is no error in the charge, and the 

judge is satisfied, this court will not interfere: 68 Ga. 594 ; 54/495; 55/18, 556, 
600, 697; 58/607. 

If , on a review of the evidence and entire record of the trial, there is no 
material error which could have produced, a different result, a new trial will 
not be granted, especially when the verdict is sustained by the evidence: 
45 Ga. 190. 

The credibility of witnesses is a question for the jury, and their conclusion 
will be disturbed only in flagrant cases of injustice : 34 Ga. 110 ; 44/209 ; 50/219 ; 
41/215; 59/738; 63/90. The verdict must be clearly wrong: 26 Ga. 276; 
35/81, 54. 

If there is evidence to sustain the verdict, there must be some well-recog- 
nized principle of law violated: 63 Ga. 158; 66/257; 6/483; 10/524; 12/450; 
28/192. State's witnesses conflicted with each other, but there was evidence 
to support the verdict : 94 Ga. 595. 

When the evidence is circumstantial, and not plainly insufficient, the ver- 
dict should stand : 63 Ga. 90. 

This court will not interfere because in its opinion the weight of the testi- 
mony preponderates against the verdict: 2 Ga. 173; 6/276; 71/487. 

The evidence though far from satisfactory is sufficient to support the ver- 
dict, and there being no error of law for correction, the discretion was not 
abused, though the judge might still have exercised it: 93 Ga. 190. Not con- 
clusive, but sufficient : 93 Ga. 180. Not entirely satisfactory, but sufficient: 
90 Ga, 448. 

To authorize the grant on the ground of reasonable doubt, the failure of the 
testimony to establish guilt must be so complete as to make doubt inevitable : 
48 Ga. 458. 

When there is no evidence to sustain the verdict, it will be set aside: 36 Ga. 
280; 50/513. 

Granted for absence of witnesses more readily when the evidence is all pre- 
sumptive, than when guilt is manifest : 44 Ga. 449. The State omitted, here, 
evidence which it could have produced, and the proof was incomplete: 33 Ga. 
571; 71/128. 

§1058. (8717.) When the verdict is against evidence. The presiding 

judge may exercise a sound discretion in granting or refusing new 

trials in cases where the verdict may be decidedly and strongly 

against the weight of evidence, although there may appear to be 

some slight evidence in favor of the finding. 

If the verdict is decidedly and strongly against the weight of the evidence, 
or contrary to law, anew trial will be granted: 22 Ga. 213; 30/137; 31/167; 
45/526. If it is against the weight of the evidence, yet not so strongly and de- 
cidedly as to make it illegal, the discretion of the court below will not be con- 
trolled : 41 Ga. 215. The verdict will not be disturbed as being contrary to 
law and. evidence, unless it appear so palpably as to raise the presumption of 
mistake of one or the other : 22 Ga. 499. Reversed because verdict strongly 
and decidedly against the evidence : 36 Ga. 424 ; 38/293, 574. 

§1059. (3714.) When evidence is illegally admitted or excluded. The 
superior courts may grant new trials in all cases when any material 
evidence may be illegally admitted to, or illegally withheld from 
the jury against the demand of the applicant. 



|1060 NEW TRIALS. AND THE SUPREME COURT. 300 

When now trial will, ami will not be granted. 



The admission of illegal testimony must be objected to : 9 Ga. 121; 23/57; 
33/5: 54/208; 85/336; 93/164. 

It must appear from the motion for a new trial or the bill of exceptions, 
what the testimony was that was admitted or rejected: 93 Ga. 166, 180, 190. 
And the objection made to it when offered must be stated: 86 Ga. 257 ; 87/209; 
90/448; 92/14; 93/307.310; 85/336. 

If there was plainly evidence sufficient to justify the finding, irrespective 
of the illegal testimony that was admitted, a new trial will not be granted: 
33 Ga. 31; 1/580; 10/209; 11/331; 14/43, 145; 21/227. And if competent evi- 
dence was excluded, but it is perfectly clear that the verdict would be right 
witli the excluded evidence in, the verdict stands: 57 Ga. 351. 

The admission of irrelevant testimony not hurtful to defendant, not good 
ground : 58 Ga. 545. Nor is the rejection of testimony of no probative value: 
79 Ga. 36. Nor an illegal unsuccessful attempt to impeach a witness: 33 Ga. 
24. Nor if evidence of a fact that could not affect the verdict, was withheld 
illegally: 14 Ga. 43. 

Illegal evidence not objected to and ruled out on motion, no ground: 
62 Ga. 174. 

Defendant cannot object to testimony first introduced by him : 57 Ga. 183. 

Defendant offered testimony which was illegally rejected. The State then 
offered it and he objected — the error was cured : 33 Ga. 303. When hearsay 
was admitted, and the direct facts were afterwards proved by the witness whose 
sayings were repeated and he had personal knowledge of them, the irregularity 
did not require a new r trial : 60 Ga. 258. 

Objectionable matter in without objection, repeated over objection, not suf- 
ficiently material to require a new trial : 64 Ga. 376. 

If a continuance is improperly refused, and illegal evidence is admitted, a 
new trial will be granted, although the verdict is right under the evidence : 
40 Ga. 529. 

Generally illegal evidence ruled out cures the error, but where it is proba- 
ble that its withdrawal does not heal the wound inflicted, a new trial will be 
granted : 72 Ga. 55 ; 65/36. 

ActsjL878-9, §1060. (3715.) For erroneous charge to jury, etc. A new trial may 
be granted in all cases when the presiding judge may deliver an 
erroneous charge to the jury against such applicant on a material 
point, or refuse to give a pertinent legal charge in the language re- 
quested, when the charge so requested is submitted in writing. And 
in the trial of causes in any of the courts, either party or his coun- 
sel may make a written request to the court to charge the jury, at 
any time before the jury retires to consider of their verdict, and 
without submitting the same to the counsel of the opposite party. 

The jury should be charged as a body and individual jurors should not be 
addressed ill a way to discourage mental harmony and concert: 63 Ga. 170; 
80/455. 

The whole case made by the pleadings and proof, and none other, should be 
submitted: 17 Ga. 194,498; 19/192; 22/98,399; 26/611; 18/230; 34/407; 32/515; 
16/205; 35/247; 43/89; 12/294; 41/504; 61/635. 

The charge should be construed in reference to the facts of the case, and 
the subject to which it relates: 20 Ga. 752; 21/221 ; 22/418. It should be con- 
strued as a whole: 59 Ga. 738; 65/332, 506, 756; 57/479; 90/431. 



301 NEW TRIALS, AND THE SUPREME COURT. | 1060 



When aevf trial will, and will nol be granted. 



A new trial will not be granted for a harmless error : 42Ga, 808; 16/600; 

33/303, 132; 46/148; 51/375; 61/379. Nor for error not calculated to mislead : 
33 Ga. 207 ; 11/226. Misdirection upon an abstract principle nol pertaining to 

the case, not good ground: 17 Ga. 194, 209; 22/84; 42/808. Sor is a wrong 
decision with respect to an immaterial matter: 15 Ga. 205. 

Where the verdict is required by the evidence, error in the charge will riot. 
necessitate a new trial: 71 Ga. 164. 

An isolated inaccuracy in the charge will not work a reversal if the verdict 
is right and the charge as a whole is correct : 69 Ga. 762. 

Irrelevant, harmless matters in the charge, but the verdict was right : 
81 Ga. 646. An inaccurate charge, but the jury were not misled, and the evi- 
dence was strongly and decidedly in favor of the verdict: 34 Ga. 348. If there 
be no material error which could have produced a different result, a new trial 
will not be granted, especially if the verdict is sustained by the evidence: 
45 Ga. 190. Inaccuracy of expression which cannot injure, when the law is 
substantially charged, no ground: 60 Ga. 139; 57/479. 

A verdict in accordance with the weight of the evidence and with justice, 
ought not to be set aside for erroneous instructions: 14 Ga. 55. This court, if 
satisfied from all the evidence with the verdict, will not set it aside for a 
charge expressed in language too strong against defendant: 42 Ga. 609. The 
verdict will not be set aside, when there is an omission to charge a clause of 
the Code that could not benefit defendant : 35 Ga. 241. Nor for omission to 
charge on a particular point claimed by counsel to be involved, who make no 
request: 28 Ga. 200. Nor on a point that is not doubtful or abstruse : 19 Ga. 6. 

If the court omits anything that is deemed material, counsel should sug- 
gest an additional charge, if desired : 35 Ga. 241 ; 28/200 ; 7/3. 

A request should have proper application to the evidence or the statement : 
91 Ga. 271. It should not be given unless there is evidence to support it: 
15 Ga. 205 ; 60/264, 368 ; 93/203. 

Unless it be all legal and appropriate, the judge may decline to give it: 
59 Ga. 142; 87/527; 12/294. One that is calculated to mislead, should not be 
given : 58 Ga. 296. The judge may modify inapt and inappropriate words of a 
request so as better to instruct the jury : 15 Ga. 223. 

It is error to give it by saying, " such is the law," in response to the request : 
10 Ga. 101. The court may read it to the jury and say, " it is the law :" 12 Ga. 
294. Court need not read to the jury, on request, any portion of a law book: 
58 Ga. 79 ; 62/337. Court may add pertinent oral comments to a written 
request : 57 Ga. 102. 

When there are several requests involving the same principle, giving one is 
sufficient : 52 Ga. 398. 

This section is permissive, not mandatory. When the judge does not fol- 
low the language of the request, but charges the law properly upon the points 
made, and upon the whole case, a new trial will not be granted for this rea- 
son only: 44 Ga. 209. The substance, at least, of a legal request must be 
charged ; it is not enough that it be covered by inference, unless the inference 
be plain and noticeable: 48 Ga. 193. In the course of his instructions, he 
must give clearly and substantially a legal request: 12 Ga. 294. If the sub- 
stance is given and defendant is not hurt by the failure to give it in the lan- 
guage requested, a new trial will not be ordered : 55 Ga. 697 ; 60/139. 

Omission to give a requested charge, not error, when a charge more fav- 
orable than the case authorizes is given: 41 Ga. 485. When a request is given 
by reading from the reports, if there be an omission, counsel should sug- 
gest it : 18 Ga. 383. 



§ L061 NEW TRIALS, AND THE SUPREME COURT. 302 

When now trial will, and will not be granted. 

When the court is asked to charge a principle, if the evidence sustains it, 
he may give the opposite if the evidence preponderates that way: 27 Ga. 288; 
42/612, 

In recharging the jury, the court may confine himself to the point on which 
the jury asked to be enlightened: 55 Ga. 697. And is not bound to repeat all 
the law favorable to the accused : 18 Ga. 460. 

Defendant cannot complain of error in his favor: 60 Ga. 145; 55/317; 
15/205; 28/200. 

Although the court charged that if the jury believed from the evidence that 
defendant did certain things he was guilty and they ought to — should — find 
him guilty, the verdict was right upon the evidence: 34 Ga. 263; 57/503; 
63/578. 

The court may remind the jury that they are not responsible for the effect 
of their verdict : 20 Ga. 156. And of what is intrusted to them : 22 Ga. 213. 
And that they should disregard all outside considerations and determine the 
case by the proof alone : 32 Ga. 672. 

It is better that neither court nor counsel should refer to the Supreme 
Court, except to cite its decisions: 5 Ga. 86; 15/122; 22/212; 58/35. 

Erroneous charge here in a material matter : 66 Ga. 349. 

Charge should contain principles, not facts: 65 Ga. 507. And contain no 
argument upon the facts : 33 Ga. 281 ; 58/48. Judge expressed surprise at 
attempt to acquit, but new trial refused: 7 Ga. 189. 

Although there was an erroneous charge as to murder, a verdict for man- 
slaughter on a proper charge and sufficient evidence was sustained: 52 Ga. 
290 ; 58/309. 

Error to charge that there was positive and circumstantial evidence, 
when it was all circumstantial : 85 Ga. 224. 

§1061. (3716.) On account of new evidence. A new trial may be 
granted in all cases, when any material evidence, not merely cumu- 
lative in its character, but relating to new and material facts, shall 
be discovered by the applicant after the rendition of a verdict against 
him, and shall be brought to the notice of the court within the time 
now allowed by law for entering a motion for a new trial. 

Such applications are not favored, and are received with caution: 5 Ga. 86; 
10/512; 12/500; 31/420; 34/114; 78/347. 

Greatly increased caution needed now: 56 Ga. 403, 

It would be good practice to let it appear where the witness resides, and 
give his character, associates, or acquaintances. Affidavits to his character 
and credibility would be profitable : 56 Ga. 403 ; 55/702 ; 68/613 ; 70/724 ; 75/887 ; 
78/347; 91/19. 

The judge may hear affidavits for and against the truth of the alleged new 
facts, and for and against the credibility of the witnesses by whom it is pro- 
posed to establish them, and thus go to the bottom of the showing: 57 Ga. 329. 

It must appear that the evidence has come to defendant's knowledge since 
the trial: 10 Ga. 512; 24/32; 34/1; 33/281; 67/260; 69/705; 26/603; 54/311; 
28/576; 30/137; 55/557; 79/37; 93/184; 61/182; 65/766 ; 56/403 ; 6T/260 ; 93/304; 
52/509; 86/90; 80/191; 63/159; 68/837; 70/726; 91/19; 81/765; 94/594; 32/672; 
95/501. 

That it was not ow r ing to the want of due diligence that he did not acquire 
it sooner: 67 Ga. 260; 31/420; 33/24; 3/310; 26/233, 603; 46/456; 47/230; 
60/601; 63/362; 80/269, 272; 81/744; 85/672; 87/559; 70/135; 72/206; 75/887; 



803 



NEW TRIALS, AND THE SUPREME COURT. 



1 1002 



When new trial will, and will not be granted, 



91/19, 149, 162; 63/557; 71/276; 79/779; 92/449; 67/260 J 66/401 ; 89/199; 17/439; 
95/346. 

That it is material and would probably produce a different verdict: 26 On. 
233; 46/456,209; 47/230; 6/276; 35/270 ; 80/357 ; 85/562 ; 91/19; 63/557; 39/718; 
52/334; 62/296; 54/564; 60/619; 56/363, 401, 545, 583; 31/120; 28/201; 22/76; 
34/78; 48/163; 56/469; 10/513; 58/577; 71/360; 94/594; 95/496. 

That it is not cumulative only, that is, speaking to facts in relation to which 
there was evidence on the trial: 3 Ga. 310; 49/211; 6/276; 55/169, 557, 702 
72/206; 75/887; 71/276, 864; 63/557; 79/779; 83/129; 34/110; 74/836; 75/747 
39/718; 90/316; 88/553; 60/619; 78/340; 51/502; 52/509; 57/609; 64/56, 454 
81/480; 70/727; 72/114; 79/512; 80/452; 95/502. 

That the only effect of the evidence will not be to impeach a witness : 85 Ga 
672; 55/169; 81/715; 91/19; 72/206; 75/887; 71/864; 93/190; 13/513; 10/513 
31/420; 34/114; 39/718; 55/169; 56/85; 59/391; 60/210; 63/159; 65/303; 54/564 
64/53 ; 66/690, 754 ; 67/570 ; 70/135, 722, 726 ; 73/621 ; 74/328, 400 ; 80/191 ; 81/332 
87/332; 89/199; 85/672; 91/19. 

The affidavit of the witness himself should be produced, or its absence ac- 
counted for: 10 Ga. 513; 6/276; 28/576; 48/30; 81/715. 

§1062. (3718.) Judge may grant on other grounds. In all appli- 
cations for a new trial on other grounds, not provided for in this 
Code, the presiding judge must exercise a sound legal discretion in 
granting or refusing the same, according to the provisions of the 
common law and practice of the courts. 

Objections to a juror propter defectum, are too late after verdict: 19 Ga. 102, 
628; 20/752; 28/439; 33/403; 39/118; 40/253; 47/538; 53/432; 57/329; 64/453; 
63/793; 66/90; 80/545. 

Cause of challenge for favor, not discovered until after verdict, is good 
ground : 5 Ga. 86 ; 14/712 ; 18/194. 

Prisoner and his counsel should make affidavit of want of knowledge : 
14 Ga. 709; 20/660; 56/401; 70/265; 32/497; 49/103. 

The court sits as trior, after verdict, and his discretion as to credibility will 
not be controlled unless decidedly wrong : 19 Ga. 614 ; 22/556 ; 24/282 ; 18/343 ; 
15/223; 59/470; 68/688; 83/46; 91/154; 58/296,577. 

When prima facie disqualification is shown, the juror may be heard in expla- 
nation : 56 Ga. 583 ; 59/309 ; 64/453 ; 66/453 ; 70/265, 767 ; 5/85 ; 14/709 ; 15/476 ; 
87/517; 18/343; 78/72; 73/72. 

In a showing against a juror who had qualified on his voir dire, there should 
be the affidavit of at least two witnesses, or their equivalent: 19 Ga. 102; 
55/697; 61/182; 63/601; 80/451,785; 84/18; 91/279. 

Jurors with fixed opinions : 5 Ga. 139 ; 12/28 ; 15/476 ; 73/72. 

Without fixed opinions: 11 Ga. 616; 45/279; 17/146, 512; 14/710; 15/544; 
16/200; 43/485. 

When a substitute juror served and it was not known : 77 Ga. 108 ; 80/546. 

An irregularity should be objected to when it becomes known : 43 Ga. 484; 
56/467; 73/620; 69/404. 

When misconduct of a juror is shown, injury to the prisoner is presumed 
and the onus is on the State to remove it, and the decision of the judge upon 
the matter is subject to review: 83 Ga. 92; 68/760; 45/225. 

An improper separation of the jury is presumed to be hurtful, and the onus 
is on the State to remove it : 5 Ga. 150 ; 10/84 ; 14/8 ; 18/535 ; 32/497 ; 45/282 : 
47/598; 56/654; 61/166; 64/453,272; 71/487,553; 80/191; 91/299; 71/487. 

Separation by consent : 45 Ga. 198 ; 73/77. 



§1062 NEW TRIALS, AND THE SUPREME COURT. 304 



When new trial will, and will not bo granted. 



Use of liquor explained: 68 Ga. TOO; 78/72. Juror asleep during the trial : 
49 Ga. 103. Juror repeats aloud to bailiff a message: 91 Ga. 279. Bailiff in the 
room: 91 Ga. 280; 70/135 ; 49/211. Reading newspapers: 80 Ga. 451. Intimate 
association by sheriff with the jury: 68 Ga. 760. Gun and coat of deceased 
taken to the room : 78 Ga. 490. Code in the room : 63 Ga. 740. Sheriff takes 
paper into the room: 43 Ga, 90. Counsel cares for juror's house: 34 Ga. 379: 
84/23. Entertaining the jury by one who assisted the prosecution: 63 Ga. 
600. Juror boarded with State's counsel: 84 Ga. 23. Talking in hearing of the 
jury: 65 Ga. 332; 93/307. Applause: 89 Ga, 527; and cries of "hang him:" 
81 Ga. 552. A juror sick but able to try the case — their wives sick: 89 Ga. 168. 
Articles of clothing to which the testimony related, delivered to the jury: 
93 Ga. 167. 

A juror may be heard to sustain, but not to impeach, his verdict : 5 Ga. 86 ; 
9/121 ; 12/28 ; 14/709 ; 15/476 ; 17/146 ; 28/79, 200 ; 30/869 ; 39/718 ; 45/281 ; 73/596 ; 
72/206; 91/21,154,256,279; 63/169; 55/592; 59/309; 72/206. 

A grand juror cannot impeach his finding: 57 Ga. 107 ; 60/145. 

Judge may admit legal testimony at any stage of the trial, and his decision 
will not be disturbed, in the absence of abuse: 16 Ga. 200; 23/191; 31/605; 
47/599; 60/368; 85/562; 65/370. 

After the State has rebutted prisoner's evidence and closed, prisoner cannot, 
as matter of right, introduce a fresh witness on his general case, without 
good excuse : 64 Ga. 344. 

The court may propound a question to the witness : 19 Ga. 102, 425 ; 31/261 ; 
and a leading one: 56 Ga. 385. May reprove witness for misbehavior: 27 Ga. 
288. May suggest to solicitor to offer forged order in evidence : 11 Ga. 92. 
Should not compliment witness : 43 Ga. 90. Nor betray emotion : 28 Ga. 576. 
Nor state in presence of the jury a fact that a witness privately told him : 12 
Ga. 142. Should not absent himself during the trial : 58 Ga. 35 ; 81/301 ; 92/65. 
Nor send the jury to examine the premises involved : 61 Ga. 635. Nor recall 
the jury and read over to them the testimony in prisoner's absence: 12 Ga. 25. 
Nor ask counsel, in presence of the jury : "What shall be done with the jury?" 
10 Ga. 512 ; 41/534 ; 69/405. He may send the jury out during preliminary 
examination as to threats by third person : 81 Ga. 553. May excuse a sick 
juror, who has been sworn in chief, before panel is made up: 68 Ga. 612. May 
suspend the trial when his physical condition requires it: 58 Ga. 35. May 
instruct the jury not to discuss the case pending the trial: 92 Ga. 65. 

The judge should recharge the jury when they request it: 41 Ga. 484. And 
defendant and his counsel have the right to be present: 51 Ga. 567; 12/25; 
87/583; 67/510. 

Evidence not offered on the trial cannot be considered on the motion : 
59 Ga. 470. 

Neglect of counsel, as a general rule, no ground: 76 Ga. 727. 

Proper practice when counsel differ as to the testimony: 80 Ga. 468. 

A juror may take notes of amounts testified to: 90 Ga. 437. Solicitor may 
attack the credit of a witness, in the concluding argument, without giving 
notice : 90 Ga. 459. ^ 

Attention was not called to the fact that defendant was unfit, in body and 
mind, to undergo trial: 91 Ga. 87. 

That an alleged accomplice has since been acquitted: 93 Ga. 304. 

A photograph of the locality of the homicide, admitted: 83 Ga. 92. 

It is good ground if the jury mistake the character of the case or evidence, 
or the amount and kind of testimony: 36 Ga. 280. 

A Saturday evening charge: 48 Ga. 67. 



305 NEW TRIALS, AND THE SUPREME COURT. J§1068, 1064 



The motion and proceedings thereon. 



To disturb a verdict as contrary to a charge on reasonable doubt, it must 
appear that some of the jury had reasonable doubt: 88 Ga. 24. 

Two verdicts have weight in passing on the motion : 73 (in. 80; 85/74. 
When the judge passes on the facts, his decision is as binding as a verdict 
and subject to the same rules : 56 Ga. 463. 



ARTICLE 2. S^At-r^S^^ ' 

/ 'ft -77 

THE MOTION AND PROCEEDINGS THEREON. / / 

§1063. (3719.) Application to be made during term. All applica- Act ^ 1%S9 ' 
tions for a new trial, except in extraordinary cases, must be made 
during the term at which the trial was had; and, when the term 
continues longer than thirty days, the application shall be filed 
within thirty days from the trial, together with a brief of evidence, 
as provided by law, subject to the approval of the judge, subject to 
the right of amendment allowed by law in applications for a new 
trial; but all applications in this section provided for, may be heard, 
determined and returned in vacation. 

Application must be made, and the brief filed, within thirty days after the 
trial, except in extraordinary cases : 91 Ga. 13. 

Accused has the right to move for a new trial on the terms of the law : 
64 Ga. 439. 

§1064. (3721.) Motion made after adjournment of court. In case of A p ct f 7 1873, 
a motion for a new trial made after the adjournment of the court, 
some good reason must be shown why the motion was not made 
during the term, which shall be judged of by the court. In all such 
cases, twenty days notice shall be given to the opposite party. And 
whenever a motion for a new trial shall have been made at the term 
of trial in any criminal case, and overruled, or when a motion for a 
new trial has not been made at such term, in either event no motion 
for a new trial from the same verdict shall ever be made or received, 
unless the same be an extraordinary motion or case, such as is pro- 
vided for in section 1063 of this Code, and there shall be but one 
such extraordinary motion ever made or allowed. 

A judge sitting at chambers cannot entertain an original motion for new 
trial, when no prior order has been passed on the subject in term time: 
55 Ga. 342. 

After affirmance by this court, to authorize a second motion, there should 
be such an extraordinary state of facts as would probably produce a different 
result, and such facts must have been unknown and impossible to have been 
ascertained by proper diligence: 49 Ga. 221; 50/636; 86/331. Such state of 
facts as do not ordinarily occur in human affairs, and are not cumulative : 65 
Ga. 57 ; 66/753 ; 78/801. It will be scrutinized closely, and must be laid in the 
very foundations of the purity of jury trial : 73 Ga. 72. 
20 



§§ 1065-1069 NEW TRIALS, AND THE SUPREME COURT. 306 

The Supreme Court. 

It must not be for newly discovered evidence to impeach a witness: 
Bl Ga. 715. 

The facts here presented an extraordinary case: 52 Ga. 53. 

§1065. (8728.) Rule nisi mutt be served. In all applications for a 
new trial the opposite party shall be served with a copy of the rule 
nisi, unless such copy is waived. 

In a cl >ar case, it is better that the rule be refused: 41 Ga. 219. If the 
grounds I . prima facie sufficient, the rule will be awarded: 10 Ga. 84. 

Groun i should be verified: 57 Ga. 207, 285. Better practice is to have the 
grounds arrect before granting the rule: 65 Ga. 332. 

§10GC. (3724.) Not a supersedeas. The rule nisi for a new trial 
shall not operate as a supersedeas, unless so ordered by the court. 

*Vp ? i\^ v ' §1067. What brief of evidence shall contain. The brief of evidence 
**■ required in motions for new trial shall be a condensed and succinct 

brief of the material portions of the oral testimony, including the 
substance of all material portions of all documentary evidence. In 
all cases in which the testimony has been stenographically reported, 
it may be reduced to narrative form, or the stenographic report may 
be used in whole or in part in making up the brief, but immaterial 
questions and answers and parts thereof stricken. The intention 
being in every case, as far as possible, to shorten the brief, and to 
include therein only material portions of the evidence. 



ARTICLE 3. 

THE SUPREME COURT. 

§1068. (218, 4284.) Powers enumerated. The Supreme Court has 
authority — 

1. To exercise appellate jurisdiction, and that only, and in no 
case to hear facts or examine witnesses. 

2. To hear and determine all causes, civil and criminal, that may 
come before it; and to grant judgments of affirmance or reversal, or 
any other order, direction, or decree required therein; and if neces- 
sary, to make a final disposition of the cause. It shall be within its 
power to award such order and direction to the cause in the court 
below as may be consistent with the law and justice of the case. 

Judge, directed to resentence the prisoner: 53 Ga. 195; 91/706. 
New trial directed, although not fully convinced that he is entitled to it: 
56 Ga. 469; 91/362. 

§1060. (4250.) When a writ of error lies. No cause shall be car- 
ried to the Supreme Court upon any bill of exceptions, so long as 
the same is pending in the court below, unless the decision or 
judgment complained of, if it had been rendered as claimed 



307 NEW TRIALS, AND THE SUPREME COURT. £* 1070, 1071 



The Supreme Court. 



by the plaintiff in error, would have been a final disposition of t lo- 
calise or final as to some material party thereto. But at any stage 
of the cause, either party may file his exceptions to any decision, 

sentence, or decree of the superior court; and if the same is certified 
and allowed, it shall be entered of record in the cause-; and should 
the case in its final termination be carried by writ of error to the 
Supreme Court by either party, error may be assigned upon such 
bills of exception, and a reversal and new trial may be allowed 
thereon when it is manifest that such erroneous decision of the 
court has or may have affected the final result of the case. 

§1070. (4251.) Bills of exception. The defendant in any criminal 
proceeding in the superior courts of this State, may except to any 
sentence, judgment, or decision, of such court, or of the judge 
thereof, in any matter heard at chambers. Such bill of exceptions 
shall specify plainly the decision complained of, and the alleged 
error, and shall be signed by the party, or his attorney, or solicitor. 

Writ of error does not lie, in a criminal case, at the instance of the State: 
7 Ga. 422; 25/311. It lies to decisions respecting bonds, recognizances, etc., 
and matters not strictly of a criminal nature : 24 Ga. 420. 

This court can only pass upon judgments rendered by the court below: 
19 Ga. 1, 123 ; 21/221 ; 22/499 ; 50/150, 249 ; 72/116 ; 86/108. It must appear that 
the decision was made : 48 Ga. 30. And the proof of it is the judge's certifi- 
cate : 22 Ga. 168. If the judge does not admit that the exception is correctly 
stated, this court will not pass upon it: 22 Ga. 499. The ground of error must 
be identified as true : 46 Ga. 159. The error must be plainly and distinctly set 
forth: 28 Ga. 200; 23/371. 

Cause not suspended until a writ of error to a judgment dismissing a plea 
in abatement could be sued out : 76 Ga. 566. 

When defendant escapes pending the writ of error, the writ will be dis- 
missed : 70 Ga. 383, 731 ; 91/669. 

§1071. Mode of taking cases to the Supreme Court. No case shall be "^Vn 89 ' 
taken to the Supreme Court by bill of exceptions, except in the fol- 115 - 116 - 
lowing manner: When a party desires to review the judgment of 
the court in refusing a new trial, he shall specifically set out the 
errors complained of, and shall specify only so much of the brief of 
evidence and such other parts of the record as are material to a clear 
understanding of the errors complained of. The judge to whom 
such bill of exceptions is tendered shall, by any needful alteration, 
cause the same to conform to the truth and to refer to so much of 
the evidence and such other parts of the record as are material to a 
clear understanding of the errors complained of; and he shall cause 
the clerk to send up only so much of the evidence and other parts 
of the record as he may certify are material, except as hereinafter 
provided. The plaintiff in error, at his election, may incorporate 
the brief of so much of the evidence as is necessary to a clear under- 
standing of the errors complained of in the bill of exceptions, rather 
than have the same sent up in the record. 



§S 1072-1075 NEW TRIALS, AND THE SUPREME COURT. 306 

The Supreme Court. 

This court is not permitted to look into a record brought up in non-compli- 
ance with this section : 85 Ga. 455. If there is a failure to comply or attempt 
to comply, this court has no jurisdiction : 86 Ga. 507. Failure to brief the evi- 
dence : 86 Ga. 773; 91/5; 92/452; 89/422. 

'ppVh^' §1072. Form of certificate of the judge. The form of the certificate 

115.116. f f} ie judge to the bill of exceptions shall be as follows : "I do 

certify that the foregoing bill of exceptions is true, and contains 

(or specifies, as the case may be) all of the evidence, and specifies 

all of the record material to a clear understanding of the errors 

complained of; and the clerk of the court of is hereby 

ordered to make out a complete copy of such parts of the record in 
said case as are in this bill of exceptions specified, and certify the 

same as such, and cause the same to be transmitted to the 

term of the Supreme Court, that the errors alleged to have been 
committed may be considered and corrected." 

An essential part of this writ of error is the clause showing that the bill of 
exceptions specifies all of the record material to a clear understanding of the 
errors complained of : 87 Ga. 186 ; 88/460. 

*p C p S n? 9, §1073. Additional record or evidence may be ordered up. If the 
116 - defendant in error shall desire more of the evidence or other parts 

of the record, or all of the evidence, or all of the record, sent up, 
he shall, within twenty days after the bill of exceptions is served on 
the defendant, or his attorney, petition the judge who signed the 
same to order the whole, or any part of the record, sent up by the 
clerk, and the judge shall order the same certified accordingly and 
sent up. 

^lii? 889 ' §1074. What the Supreme Court shall decide. The Supreme Court 
shall not decide any question unless it is made by a special assign- 
ment of error in the bill of exceptions, and shall decide any 
question thus made. 

Act J^ 890 " 1 ' §1075. Bills of exceptions to be governed by law and rules as to 
injunctions. All bills of exceptions in criminal cases shall, as 
regards the practice both in the lower court and in the Supreme 
Court, relating to the time and manner of signing, filing, serving, 
transmitting and hearing the same, be governed, in all respects 
where applicable, by the laws and rules in reference to bills of ex- 
ceptions in cases of injunction, and it shall be the duty of the 
Supreme Court to give a speedy hearing and determination in such 
cases, either under existing rules or under special rules to be 
formulated by said court for that purpose, and if the judgment of 
the court below is affirmed in the Supreme Court, t'he clerk of the 
Supreme Court shall transmit promptly the remittitur to the clerk 
of the court from which the writ of error was taken, and upon the 
reception of the same, the clerk shall notify the judge of said court, 
who shall have full power, in term or vacation, to pass any order, 



800 NEW TRIALS, AND THE SUPREME COURT. ;. L076 L077 



The Supreme Court. 



sentence or judgment necessary to carry into execution the judg- 
ment of the court. 

A case will not be postponed except for providential cause: 01 Ga« 112. 

The transcript of the record must be transmitted within fifteen days after 
service of the bill of exceptions: 93 Ga. 112; 93/215,216. 

Bill of exceptions not tendered in time: 93 Ga. 216. 

A case carried by certiorari to the superior court and there dismissed, is a 
criminal case tried "in that court" : 94 Ga. 74. 

§1076. (4201.) On whom nerved. In a criminal case, the copy 
bill of exceptions shall be served upon the solicitor-general, or upon 
a solicitor-general pro tern., who tried the cause, if he is still acting 
under the appointment. 

Service on an ad interim solicitor-general after the term closes, insufficient: 
15 Ga. 400. 

Service by a party must be shown by his affidavit on, or attached to, the bill. 
When served by the sheriff, his entry is sufficient. Leaving a copy at residence 
of counsel, insufficient: 50 Ga. 369. 

Service on counsel employed to assist solicitor, not good : 66 Ga. 243 ; 87/331. 

Service — certiorari from county to superior court : 74 Ga. 411 ; 90/452 ; 93/217. 

§1077. (4263.) Supersedeas. The bill of exceptions thus filed Cobb, 449. 
shall operate as a supersedeas, upon the plaintiff in error complying 
with the following terms : Where the offense is bailable, the de- 
fendant shall enter into a recognizance before the clerk, with security 
to be approved by him, in a sum to be fixed by the presiding judge, 
conditioned for the personal appearance of such defendant, to abide 
the final order, judgment or sentence of said court. If the offense 
is not bailable, the judge shall order a supersedeas at the time of 
filing the bill of exceptions. If the party is unable from his poverty 
to give the recognizance, the judge shall order a supersedeas upon 
the filing of an affidavit as provided in civil cases, but the defend- 
ant shall not be set at liberty without the recognizance. 

In a capital case a supersedeas should be granted when the bill of exceptions 
is signed : 47 Ga. 369 ; 49/221. 



§§ 1078-1080 COSTS, FINES, FINE AND FORFEITURE FUND. 310 

Costs. 



COSTS, FIXES, AND FINE AND FORFEITURE FUND. 



ARTICLE 1. 



COSTS, 



^Jrtlisea §1078. (4699.) When defendant shall pay costs. The costs of a 
r." >fif r 857' prosecution, except the fees of his own witnesses, shall not be de- 
59,860. manded of a defendant until after conviction on final trial. If 
convicted, judgment may be entered up against him for all costs 
accruing in the committing or superior courts, and by any officer 
pending the prosecution. The judgment shall have a lien on all 
the property of the defendant from the date of his arrest, and the 
clerk shall issue an execution, on the judgment, against said prop- 
erty. The court may also direct the defendant to be imprisoned 
until all costs are paid. 

The term costs includes all charges fixed by statute as a compensation for 
services rendered by officers of the court in the progress of the cause : 33 Ga. 
531. The attendance of witnesses and the process to secure it are part of the 
costs : 72 Ga, 677. 

Officers must show authority of law: 9 Ga. Ill: 11/643. Collected only 
after conviction : 33 Ga. 338 ; 72/677. Taxed under the law of force at the 
time the crime was committed: 34 Ga. 204. Lien attaches also to the pro- 
ceeds of the property : 13 Ga. 493. Defendant's cash in officer's hands may be 
applied to costs: 9 Ga. 109; 11/130; 13/494. Execution may issue for fine and 
costs: 48 Ga. 335. Committing magistrate can only give judgment for costs 
of prisoner's witnesses : 40 Ga. 476. County liable for cost of guard rendered 
necessary by insufficient jail: 9 Ga. 109. Retaxation of costs: 93 Ga. 575; 
88/461. 

Cobb. 277. §1079. (3682.) Costs of witnesses for the State. No defendant shall 
be liable for the costs of any witness of the State, unless such wit- 
ness was subpoenaed, sworn, and examined, on the trial, nor for 
the costs of more than two witnesses to the same point, unless the 
court shall certify that the question at issue was of such a character 
as rendered a greater number of witnesses necessary to a single 
point. 

86 Ga. 375. 

§1080. (595.) Costs of inquest when the 'party is convicted. If any 
person is convicted of murder or manslaughter, in a case where an 
inquest has been held over the body of the person for slaying whom 
he is convicted, the costs of the inquest make a part of the costs of 
conviction, and must be so charged. 



311 COSTS, FINKS, FINK AND FORFEITURE FUND. g§ L061-10M 

FinoH. 

§1081. (4700.) Discharge of insolvents by ordinary. If any prisoner J 
in the common jail, after the time of his imprisonment expires, or i j •■"'"• 
otherwise, is detained merely until his costs, or until fine arid costs 
are paid, and the ordinary is satisfied that he is unable to pay the 
costs and fine, or either of them, said ordinary may discharge him 
from further confinement. 

§1082. (4630.) When the prosecutor shall 'pay costs. The prosecu- 
tor's name shall be endorsed on every indictment, and he shall be 
compelled to pay all costs and jail fees, upon the acquittal or 
discharge of the person accused — 

1. When the grand jury, by their foreman, on returning "no c t** 888 - 
bill," express it as their opinion that the prosecution was unfounded 

or malicious. 

2. When a jury on the trial of the prosecution finds it to be A r ^ t ? 3 1871-2 ' 
malicious. 

3. When the prosecution is abandoned before trial. When it is 
thus abandoned, the officer who issued the warrant shall enter a 
judgment against the prosecutor for all the costs, and enforce it by 
an execution in the name of the State, or by an attachment for 
contempt. 

The court has no power to relieve the prosecutor, if the jury find a verdict of 
not guilty, and that the prosecution is malicious: 20 Ga. 839. Such a finding 
affects the prosecutor — not the prisoner — and a charge on the subject could 
not go in aid of any defense : 30 Ga. 139. 

§1083. (4689.) Hoiv paid when venue is changed. When the venue Acts 4 1 9 87 ^; 2 ' 
is changed, the whole costs of the case and expenses of the trial in 1895 'P- 71 - 
the county to which it was transferred, shall be borne by the county 
from which the case is removed. The jail fees, if any, of the per- 
son to be tried, shall be collected and paid by the county treasurer 
of the county from which the case was removed; the mode of col- 
lecting these fees and regulating the amount of fees is the same as 
in other like cases. The entire court costs, including the costs of 
sheriff, bailiff, clerks and jurors shall also be paid by the county 
treasurer of the county from which the case was removed, and shall 
have the same priority as jail fees, and shall be paid to the county 
treasurer of the county where the case is tried, after having been 
first paid by him. 



ARTICLE 2. 

FINES. 



§1084. (4655.) Paid immediately. Every fine imposed by the Col ' bs3 " 
court under the authority of this Code shall be paid immediately, 
or within such reasonable time as the court may grant. 



|| 1085^1087 COSTS, FINES, FINE AND FORFEITURE FUND. 312 



Fine and forfeiture fund. 



The court may imprison to enforce payment, and the imprisonment is no 
part of the penalty: 22 Ga. 98; 23/230; 48/336. Maybe changed after pro- 
nounced, and before entered on the minutes: 28 Ga. 235. And during the same 
term and in absence of the prisoner when for his benefit : 60 Ga. 284. Execution 
ordered after imprisonment proves ineffectual: 48 Ga. 335. Discharge by par- 
don : 51 Ga. 255. 



ARTICLE 3. 



FINE AND FORFEITURE FUND. 



A p ct ^ ls7, §1085. (4654.) Officers have a lien on fine and forfeiture fund . The 
officers of court shall have a lien upon all funds arising from fines 
and forfeitures, for the payment of their insolvent costs, before any- 
specific appropriation shall be made of said funds for purposes of 
Sunday-schools, or other educational purposes. 
Cobb, 833, §1086. (4709,4631.) Insolvent costs, how allowed. In cases where 
*pp S -^ ^ a kiH °f indictment is preferred and not found true by the grand 
jury, or where a defendant shall be acquitted by a jury, or where 
persons liable by law for the payment of costs shall be unable to 
pay the same, the officers severally entitled to such costs may pre- 
sent an account therefor to the judge of the Court in which the 
prosecutions were depending, which, being examined and allowed by 
him, he shall order to be paid in the manner prescribed by law, and 
such account and order shall be entered on the minutes of the court. 
§1087. (4709, 4631.) Insolvent costs, how paid. Money arising 
from fines, or collected on forfeited recognizances in the superior 
courts, or for a violation of the penal laws, shall be first applied to 
the extinguishment of the insolvent lists of the officers bringing it 
into court and those of justices and constables pro rata, and then to 
the orders of former officers in proportion to their claims. 

The solicitor who brings the money into court is first paid ; then the insol- 
vent orders of the former solicitor and the clerk and sheriff according to their 
priorities, and the surplus into the county treasury: 81 Ga. 719; 67/559. 

The lien extends only to fines inflicted, or collections on recognizances, by 
the superior court: 54 Ga. 42. 

The law does not require it, but the proper time for allowing the accounts 
of solicitors is at the term when the costs in each case accrue: 12 Ga. 353. The 
Older is a charge upon the fund, and will not be opened upon a motion to dis- 
tribute a fund in court: 12 Ga. 353. It is a judgment and cannot be attacked 
collaterally: 39 Ga. 578. 

Solicitor is entitled to his fees, whether the bills are tried or nol. pros'cl, or 
whether disposed of during his term or not: 12 Ga. 353. 

Penalties may be remitted before collected : 15 Ga. 480. So far as the pub- 
lic is interested in a line, executive remission has the effect to restore it, but 
so far as the citizens have a vested right in it, it is beyond the power of the 
Governor: 1 Ga. 608. 

The general rule: 82 Ga. 20; 85/284. 



818 COSTS, FINKS, PINE AND FORFEITURE PUND. g§ L088-10W 



Pine 'Hid forfeiture fund, 



§1088. (4701) a, 4709c.) Costs due justices and constables. Costs due 

justices and constables, in cases — ' : j/'ioi.' 

1. When parties have been acquitted; 

2. When they are unable to pay costs; 

8. In counties in which there are no county courts, when persons 
have been bound over by the justice, or liav<; been committed to jail 
in default of bail and the grand jury make a return of "no bill;" or 
when, after an investigation, the party has been discharged by 
the justice; 

4. In counties where there are county courts, in felony cases; and 
in misdemeanor cases in which an indictment has been demanded; 

Shall be paid out of fines and forfeitures upon the order of the judge 
of the superior court, and are of equal dignity with the accounts of 
the officers of the superior court, and entitled to participate pro rata 
upon a distribution of any funds arising from fines and forfeitures. 

§1089. (4655a.) Forfeitures and fines to be paid into the county ^fogj 7 ** 
treasury. The officers of the several courts, including the prosecut- 1878-9, 
ing officers, shall pay into the county treasury of the county where 
said court is held all moneys arising from fines and forfeitures by 
them collected, and, on failure to do so, shall be subject to rule and 
attachment, as in case of defaulting sheriffs. But no such officer 
shall be required to pay into the treasury, as aforesaid, any such 
moneys, until all the legal claims on such funds held and owned by 
said officer bringing the money into court, and the costs due the 
justices and constables in the particular case, by which the funds for 
distribution were brought into court, shall have been allowed and 
paid. 

§1090. (4655 b.) How distributed. All such fines and forfeitures A p ct ^ S78 " 9 ' 
shall be, at each term of the court, distributed by the solicitor, 
under order of the court, to such persons and according to the pri- 
orities now prescribed by law; and on his failure to do so, he shall 
be subject to a rule at the instance of any party aggrieved. 

§1091. (4655 c.) To be kept separate. The moneys, so paid in, A p t ^ 876 ' 
shall be kept separate and distinct from the county funds arising 
from other sources, and distinct and separate accounts of said funds 
shall also be kept as to what court the same was received from, by 
the county treasurer, and the same shall be paid only for insolvent 
costs, and in cases where defendants have been acquitted in the 
manner hereinafter directed. 

§1092. (4655d.) How claims on the fund are to be paid. Any offi- A p ct | : J S76, 
cer having a claim against said fund for insolvent costs, or in cases 
where defendant has been acquitted, if the same accrued in the 
superior court (or a magistrate's court prior to indictment), shall 
present to the judge of the superior court an itemized bill of costs 
claimed, and if the same shall be approved by him, he shall order 



§§ 1099-1097 COSTS, FIXES, FINE AND FORFEITURE FUND. 314 

Fine and forfeiture fund. 

the same entered on the minutes of the court, and the same shall 
be a warrant on the county treasurer, to be paid by him out of any 
tines and forfeitures in the treasury received from the superior court. 

^M? 7 *' §1093, (4655 e.) Justices and others, how paid. Any officer of the 
county court, or any notary public, or justice, having jurisdiction 
for the trial of misdemeanors in any county, having a like claim for 
costs, or before whom a preliminary investigation may be had, and 
also constables having a like claim for costs, shall present the same to 
the judge of said court in the form prescribed in the preceding section, 
and which order, when approved and entered on the minutes of said 
county court, if any, and if not, then on a book prepared and kept 
by said county court, said notary public, or justice, for that pur- 
pose, the same shall be a w r arrant on the county treasurer, to be paid 
out of any fines and forfeitures arising from proceedings in said 
county court in accordance with the laws providing for the distribu- 
tion of fines and forfeitures in the superior court. 

A p Ct io9 876 ' §1094. (4655 f.) Treasurer to report to grand jury. The county 
treasurer shall report to the grand jury, at each regular term of the 
superior court, the amounts of fines and forfeitures received by him, 
and to whom disbursed, for the six months preceding said report, 
and shall receive, as his compensation, two and one-half per cent, 
on the amounts paid out by him. 

A p Ct io9 876 ' §1095. (4655 g.) Local laws not repealed. Nothing in the preceding 
section shall affect the distribution of funds arising from fines and 
forfeitures, or the compensation of county treasurers, as regulated 
by any local law. 

^ioI 876 ' §1096. (4655 h.) Exceptions. The foregoing sections do not apply 
to a city court, nor do they authorize a judge to draw his warrant to 
pay insolvent costs, or costs where the defendant has been acquitted, 
on any other fund in the county treasury than the fund arising from 
fines and forfeitures, nor do they affect any local law. 

A p Ct 2i2 8&01 ' §1097. Fund arising from the labor of convicts. When a county 
hires out convicts, the money received as compensation for their 
labor shall be applied to the payment of the fees of the' officers of 
court, including justices and constables who rendered services in 
such cases, and to the witnesses' fees, and the balance shall be 
paid into the county treasury for county purposes. 



315 SALARIES AND PEES OF OFFICERS, ETC. &§1098, 1000 

illegal f<;^H. Solicitor-general. 

SALARIES AND FEES OF OFFICERS, WITNESSES 

AND JURORS. 



ARTICLE 1. 

ILLEGAL FEES. 



§1098. (3710.) Officer dismissed for taking illegal fees. Any public CoV 
officer who shall charge or take fees not allowed by law, or for 
service not performed, shall, on conviction or proof thereof, be dis- 
missed from office. 



ARTICLE 2. 

SOLICITOR-GENERAL. 

§1099. (1646, 1646 a, 1650.) Salary and fees of solicitor-general. c °^ h ^> 
The salary per annum of each solicitor-general is two hundred and 456 - 
fifty dollars. 

His fees are as follows : 

For each person prosecuted for a capital offense, $ 50 00 

For each person prosecuted to trial or plea of guilty for any 

other felony, and for any violation of the laws against 

gambling 25 00 

When any person is indicted or prosecuted for assault with ~p Ct 33 1S " 6f 

intent to murder, and shall be convicted or plead llw'p'S* 

guilty of assault and battery, or assault 5 00 

For each person indicted or presented 5 00 

For every bill of indictment ignored by the grand jury. . . 5 00 
For a peace warrant tried or disposed of by the court ... 5 00 
For attending at judge's chamber to take the affidavit of 

any person in criminal cases 1 00 

For drawing an affidavit, or any instrument of writing, 

per copy sheet 10 

For drawing capias against a person indicted or presented 

and not bound over 50 

For drawing a capias against each defaulting juror .... 50 

For entering a nolle prosequi 25 

For each proceeding to enforce a recognizance ........ 5 00 

For every amount collected on such proceedings .... 5 per cent. 

For plain collections for the State 5 per cent. 



§§1100-1108 SALARIES AND FEES OF OFFICERS, ETC. 316 

Solicitor-general. 

For litigated collections for the State . . . . 10 per cent. 

For every proceeding instituted to forfeit a charter . . . .$ 100 00 
For services in cases not mentioned, where the State is 
an interested party, at the discretion of the Governor, 

not exceeding 50 00 

For services in the Supreme Court his fees are : 

In capital cases 50 00 

Other felonies 30 00 

All other cases 15 00 

For litigated recognizance, double fees and commissions. 

A p 0t J^ SV '' "^ s ^ ees ^ or P rosecu t'ing in the superior court the felonies which 
1866, p- 158. were reduced to misdemeanors by the Act of March 20th, 1866, are 
the same as they were before said Act. 

Solicitor's right to $5.00 for each indictment for a misdemeanor is complete 
before the case is transferred to the county court: 76 Ga. 493; 61/70. 

§1100. (1647.) Certificate of services. They shall not be paid 
fees for litigation without the certificate of the presiding judge that 
they are properly and faithfully claimed as such, nor on any bill 
for any species of gaming, where the same is entered nol. pros. 

§1101. (1649.) State to pay fees in Supreme Court, when. The fees 
of the solicitors, for services rendered in the Supreme Court, shall be 
paid by the State, on the warrant of the Governor, in all cases 
when the solicitor shall present the certificate of the clerk of the 
Supreme Court as to services, and of the clerk of the superior court 
to the fact that the defendant was acquitted, or was unable to pay 
the costs. 

A p ^T-f 84 5 " §1102. In city court cases. Their fees in city courts shall be as 

1890-1, p. 96. f n ll nW H • 
1892, p. 107. I0110W S • 

For every case prosecuted to trial or plea of guilty, which 

originates by accusation in the city court .......$ 10 00 

For every indictment prosecuted to trial or plea of guilty . 5 00 

For every case for a violation of the gambling laws of this 

State 25 00 

For representing the State in each case carried to the Su- 
preme Court from the city court 15 00 

For all services for which this section does not provide, he shall 

receive the same fees as are allowed by law for similar services in 

the superior court. 

A p ^t** 84 * 5, §H 08 . In Supreme Court. He shall, for his services in the Supreme 
Court, be paid out of the treasury of the State, by warrant drawn 
by the Governor upon certificate of the clerk of the Supreme Court 
as to the performance of such services, and the certificate of the 
clerk of the city court of the insolvency or acquittal of defendant. 



817 SALARIES AND PEES OF OFFICERS, ETC. |§ 1 104. 1 106 



Stenographic reporter. Special criminal i.;ulifTH. 



ARTICLE 8. 



STENOGRAPHIC REPORTER. 



§1104. (4696b.)- Compensation in criminal cases. The compel i:-a- Acts im, 
tion of the reporter, or stenographic reporter, for taking down te.sti- iw*-g, 
mony in the trial of such criminal cases as are required by law to 
be recorded, shall be fifteen dollars per day, which sum shall be 
paid by the county treasurer, or other officer having charge of the 
county funds of the county wherein such criminal cases shall be 
tried, on the certificate and order of said judge, as to the number 
of days he has been employed, but not exceeding twenty-five hun- 
dred dollars shall be paid in any one year for work done in that 
year out of funds of any one county. In cases of conviction, the 
costs of reporting, as provided in this section, shall be entered up 
against the defendant, on which judgment the clerk of the superior 
court shall issue execution, and the money arising therefrom shall 
be deposited in the treasury of the county where such conviction 
was had, to be held as other county funds are held. Said reporter 
or stenographer shall, for reports of evidence, and other proceed- 
ings by him furnished, be paid by the party requesting the same, 
at a rate not to exceed ten cents for each one hundred words. 

County authorities have no power to audit, order paid, or act upon orders 
granted by the judge. Order should be presented to the treasurer. What the 
order should show: 91 Ga. 621. It must be for a specified time at the rate of 
fifteen dollars per day : 93 Ga. 255 ; 93/777. 

The phrase " taking down the testimony" embraces the whole process of re- 
producing the testimony in ordinary and intelligible writing when necessary to 
comply with the law. When there is no conviction, the process is complete 
without writing out the notes: 93 Ga. 775. And when there is a mistrial: 93 
Ga. 777. But the judge cannot allow compensation for services before they 
are rendered : 93 Ga. 777. 



ARTICLE 4. 



SPECIAL CRIMINAL BAILIFFS. 



§1105. Their compensation. The compensation of special criminal Actsi89o-i. 
bailiffs shall be fixed by the ordinary, or by the county commission- 
ers in those counties where such boards exist, and shall be paid out 
of the county treasury on warrants drawn by the ordinary or the 
board of commissioners of roads and revenues in the several coun- 
ties where such bailiffs are appointed. 



§§ 1106, 1107 SALARIES AND FEES OF OFFICERS, ETC. 318 

Clerks of the superior eourts. Sheriffs. 

ARTICLE 5 

CLERKS OF THE SUPERIOR COURTS. 

^p?88j»!' §1106. (8695.) Clerks of superior courts. The clerks of the supe- 
rior eourts shall be entitled to charge and collect the following fees 
for official duties performed by them, to wit: 
For service in docketing and entering bills of indictment or 

presentments on minutes in case of nolle prosequi .... $3 00 
For services in said cases when defendant is tried or pleads 

guilty, or there is a settlement 6 00 

For transcribing record and evidence in State cases, per one 

hundred words 15 

For recording forfeiture of bond on minutes 1 00 

For issuing scire facias after forfeiture, original 1 50 

For eacli copy 1 00 

For subpoenas, each 15 

No statute of force, which provides compensation for said clerks 
for discharge of a duty not herein provided for, is hereby repealed. 



ARTICLE 6. 



SHERIFFS. 



Ti 1880 " 1 ' § 1107 - ( 8696 -) Sheriffs. The sheriffs are entitled to the following 

1894, p. 48. f eeg? tQ wit . 

For removing prisoner when habeas corpus is sought for his 

relief $ 1 25 

For removing a prisoner by order of any court, and for bring- 
ing back fugitives from justice to the county where the 
crime was committed, to be paid out of the county treas- 
ury upon approval of the county commissioners or ordi- 
nary, per day 2 00 

and actual necessary expenses. 
Cobb, 85i. Yot removing a prisoner under habeas corpus, when no mile- 
age is paid, per day 2 00 

For attending a person taken by warrant to the judge's cham- 
ber, for each time 1 25 

For conducting a prisoner before a judge or court to and from 

jail 1 25 

For executing and returning a bench-warrant 2 00 

For apprehending a person suspected, if committed or held to 

bail 2 00 

For each person, not exceeding two, who may be employed to 

guard a prisoner to and from jail, per day 1 50 



319 SALARIES AND FKKS OK OFFICERS, ETC. §1106 

Jailers. 

For taking bonds in criminal cases $ 1 00 L \rr «*£«£ 

For executing a criminal 10 00 

For executing a warrant of escape 1 00 /£? "6£ 

Mileage fees, executing criminal, and for guards, herein provided, 
shall be paid by the county, and no criminal cost herein provided 
for shall be collectible out of the defendant until after conviction, 
except costs accruing upon forfeited recognizances. 

Sheriffs, being ex officio jailers, shall receive the following fees for 
official duties performed by them, to wit : For turning key on re- 
ceiving, discharging, or conducting a prisoner before any court, 
sixty cents. For dieting a prisoner confined in jail on any ground 
whatever, such fees as may be fixed by the ordinary or commission- 
ers of the county who are invested by law with power to fix said 
fees. Whenever jail fees are chargeable to the county, the same 
shall be paid monthly. Provided, that no local law regulating county 
jails or fixing salaries for jailers, or their fees, shall in any way be 
affected or repealed by this section. 

All laws and parts of laws in conflict with this section are hereby 
repealed, except that no statute in force in this State which provides 
compensation for sheriffs for discharge of a duty not herein pro- 
vided for, shall be hereby repealed, but the same shall continue in 
force, and except that no local law shall be hereby affected : Provided, 
that if provision be made by local or special law for such special 
compensation, then the sheriff shall not be entitled to compensation, 
both under this section and under such local or special law. 

For his attendance at the regular terms of city courts established Act ?JP M " s ' 
on the recommendation of grand juries, he shall have the same pay, JH2" 1 * p io?" 
to be paid in the same manner, as allowed him for similar services 
in the superior court. 

Not authorized to charge railroad fare — only mileage : 9 Ga. 109. To be paid 
once for bringing prisoner into court for trial, and once for returning him — not 
for each time to and from the jail : 70 Ga. 722. 

Attendance upon the court and summoning tales jurors are incident to the 
office, and no extra compensation can be charged therefor: 65 Ga. 80. 



ARTICLE 7. 



JAILERS. 



§1108. (3698.) Jailers. Jailers are entitled to the following fees, A p ct J 2 1S75 ' 
to wit : 1880-1, p. w. 

For turning the key when he receives the prisoner, sixty cents. 
For turning the key when he finally discharges the prisoner, 
sixty cents. 






§§1109-1111 SALARIES AND FEES OF OFFICERS, ETC. 320 



Jury commissioners and olerks. Justices of the peace. Constables. 



For dieting prisoners confined in jail on any ground whatever, 
such foes as may be fixed by the ordinary of the county, who is 
hereby invested with the power to fix said fees. 

Whenever jail fees are chargeable to the county, they shall be 
paid monthly. 

This section shall not vary or repeal any local act regulating the 
fees of jailers. 

It is the duty of the solicitor to put the jail fees in the bill of costs and col- 
lect and pay them over to the proper county officer: 81 Ga. 719. 



ARTICLE 8. 

JURY COMMISSIONERS AND CLERKS. 

§1109. (3910b, 3910c.) Jury commissioners and clerk. Jury com- 
missioners shall receive two dollars each for every day's service in 
revising the jury-lists, to be paid from the county treasury. 

The clerk of the board shall receive three dollars for each day's 
service, to be paid in like manner. 



ARTICLE 9. 



JUSTICES OP THE PEACE. 



Acts^i877, §1110. (3699.) Justices. Justices of the peace shall have the fol- 
lowing fees, to wit: 

For each criminal warrant issued by them $ 1 25 

For taking examination of a person charged with a criminal 

offense 1 25 

For examining each witness in criminal cases 30 

For making out a commitment 35 



ARTICLE 10. 



CONSTABLES. 



AetaiMT, 81111. (3700.) Constahles. The fees of constables shall be as 

pp. 84, bo. o v ' 

follows : 

For summoning each witness $ 30 

For attending each trial on a day different from regular 

court day 35 

For summoning jury on inquest 1 00 



321 SALARIES AND FEES OP OFFICERS, ETC. gg 1 112-1 1 15 

Coroners. Ordinaries. Witnesses from other counties, and when vine- If changed. 

For attending grand jury, per day $ MX) 

For serving warrant in criminal cases 1 25 

For keeping and maintaining prisoner before examination, 

not exceeding twenty-four hours 75 

For taking bond in criminal cases 1 00 



ARTICLE 11. 

CORONERS. 



•1112. (3701.) Coroners. Coroners' fees are as follows, to wit : ScSiw 



For summoning an inquest on a dead body and returning an 

inquisition $10 00 

For furnishing coffin and burial expenses 15 00 

When performing the duties of a sheriff, his fees are the same 
as a sheriff. 

No coroner shall receive out of the county treasury of any county 
more than fifteen hundred dollars per annum, either as fees for 
holding inquests or for burying the dead bodies. 

Not the coroner's duty to bury pauper bodies except those on which an in- 
quest has been held, and the limit of $15.00 applies to cases in which it is his 
duty to hold an inquest and bury : 73 Ga. 806. 



p. -:>,. 



ARTICLE 12. 

ORDINARIES. 



§1113. Ordinaries. Ordinaries, for riling and recording on the Aet | 9 1893 ' 
minutes the bond required of a seducer when he obtains a marriage 
license, shall have a fee of one dollar, to be paid by the seducer. 



ARTICLE 13. 

WITNESSES FROM OTHER COUNTIES, AND WHEN VENUE IS CHANGED. 

§1114. (3845.) Subpoena for non-resident State's ivitness. No sub- ^ctsiare-s, 
poena for a non-resident witness for the State shall be issued, unless i^'S-p- as- 
signed by the clerk of the court and the solicitor-general of the 
circuit. 

§1115. (3845.) Pay of non-resident icitness. A witness for the A f r ,t 1S7S " 9, 
State attending in a different county from that of his residence JiS?' p« "J- 
shall receive two dollars per day during his attendance, and his 
actual traveling expenses, not to exceed four cents per mile in going 
and returning. If he is subpoenaed in more than one case, he shall 
receive mileage in one case only, but he may receive the per diem pay 
21 



§§ lllG— 1110 SALARIES AND FEES OF OFFICERS, ETC. 322 

Witnesses from other counties, and when venue is changed. 

for attendance in any criminal case pending in the court: Provided, 
that a witness whose residence or usual place of business is within 
three miles of the court-room attended by him, shall be paid for at- 
tendance seventy-five cents per day, and no mileage. 

Non-resident, summoned in this State, entitled to mileage from county 
treasury for whole distance to and from his home: 38 Ga. 214. 

Witness attending committing trial in county other than of his residence, 
not embraced: 65 Ga. 384. 

A P ct .y >7M '" §1116- (3845.) How collected. The claim shall be verified, by the 
i§98, p. 88. witness, on the subpoena, and shall distinctly state the days of the 
month of the attendance, and the number of miles traveled, and the 
attendance and mileage shall be certified by the solicitor-general 
after the case has been tried or disposed of for the term. The amount 
due shall then be paid out of the county funds, and in case of con- 
viction, shall be taxed in the bill of costs. 

The subpoena with indorsed affidavit and an order approving the bill make 
a. prima facie case for entering judgment: 32 Ga. 111. 
A r rt 1893, §11 IT- (3845.) Local laws not repealed. Laws requiring county 
commissioners in particular counties to approve accounts against 
the county are not affected by the preceding section, nor does it re- 
peal any local law on the subject of paying witnesses. 

§1118. (8845.) May apply to defendant's witnesses. The foregoing 
provisions of this Article shall apply to the defendant's witness when, 
in the discretion of the presiding judge, the end of justice may. 
demand it. 
wo, §1119. (4690.) When the venue has been changed. Witnesses at- 
tending court out of the county of their residence, for the purpose of 
testifying in cases in w r hich the venue has been changed, shall receive 
the fees of witnesses as prescribed in this Article, and shall be paid 
by the county treasurer out of the county funds of the county where 
the case originated. 



**+* 



# 



823 COUNTY JAILS. §§ 1 L20-1124 



i>uti<-.s of jailer. 



COUNTY JAILS. 



ARTICLE 1 



DUTIES OF JAILER. 



§1120. (356.) Sheriffs are jailers, and may appoint jailers. Sheriff's 
are, by virtue of their offices, jailers of the counties, and have the 
appointment of jailers, subject to the supervision of the ordinary, 
as prescribed by law. 

§1121. (357.) Jailers take oath and give bond. Before entering on ^. b ' 201 ' 
the duties of their office, such jailers must give to the sheriff bond 
and surety for the sum of one thousand dollars, conditioned for the 
faithful performance of their duties as jailers, and shall take and 
subscribe before the ordinary of the county the following oath, viz.: 
" I do swear that I will well and truly do and perform, all and sin- 
gular, the duties of jailer for the county of , and that I will 

humanely treat prisoners who may be brought to the jail, of which 
I am keeper, and not suffer them to escape by any negligence or in- 
attention of mine. So help me God." 

§1122. (587.) When coroner is keeper of the jail. The coroner is 
keeper of the jail when the sheriff is imprisoned or absent from the 
county, leaving no deputy. 

S1123. United States prisoners. The keeper of a countv jail may ActsM89 - 

° . x " J pp. 47. 46. 

decline to receive a prisoner from the custody of any person acting 
under the authority of the United States, or he may receive such 
prisoner if the consent of the officer having control of county mat- 
ters is first obtained. If the keeper receives such prisoner, it shall 
be under like penalties and subject to the same action as in the case 
of prisoners committed under the authority of the State. 

81124. When notice of refusal shall he qiven. If the keeper of the Actslss ^ 
. . . pp- -*"• *8> 

jail consents to receive a prisoner, as provided in the preceding sec- 
tion, neither he, nor the county authorities, shall refuse to receive 
any prisoner so committed by the authority of the United States. 
unless twenty days written notice be previously given by such sheriff 
to the United States marshal, or other officers of the United States 
charged with the custody of United States prisoners, of his refusal 
to receive any more prisoners committed by the United States 
authorities. 



5§ 1125-1129 COUNTY JAILS. 324 

Duties of jailer. 

A p Ct iii'"' 8 1125 - (866a.) Record of prisoners to be kept. The sheriff shall keep 
in a well-bound book, provided for that purpose, a record of all 
prisoners committed to the jail of the county of which he is sheriff, 
which record shall contain the name of the person committed, age, 
sex, and color, under what process committed, and from what court 
issued, the crime charged, the date of commitment to jail, and the 
day of discharge, and under what order discharged, and the court 
from which it issued; and which book shall, at all times, be subject 
to examination by any person, and the sheriff shall keep the book on 
file in his office: Provided, that in the county of Richmond the book 
shall be kept by the jailer, as provided for sheriffs, except that it be 
kept in the jail. 

A rj Ct iii S77 ' §1126. (366 b.) Grand jury to inquire into record. It shall be the 
duty of the grand jury, at each term of the court held in the county, 
to inquire into the contents of the record kept, and if not kept, or if 
incorrectly kept, they shall so report to the court, and upon such 
report being made the judge presiding shall cause the solicitor-general 
to have the sheriff served with a rule, requiring him to show cause 
why he should not be punished for contempt; and the judge shall 
inquire into the facts, and if he shall find that the preceding section 
is not complied with, he shall impose a fine of not less than twenty- 
five, nor more than fifty dollars for the first offense, and not more 
than one hundred dollars and not less than fifty dollars for each 
subsequent offense, which fine shall be enforced and collected by at- 
tachment, as in other cases of attachments against sheriffs. 
Cobb, 858. §1127. (361.) Duties of the sheriff. It is the duty of the sheriff— 

To take from the preceding sheriff custody of the jail and the 
bodies of such persons as are confined therein, with the precept, writ, 
or cause of detention. 

To furnish prisoners with medical aid, fire, and blankets, to be 
reimbursed, if necessary, from the county treasury, and to suffer a 
penalty for neglect, as prescribed in this Code. 

To take all prisoners arrested, or in execution under any criminal 
or civil process, to the jail of an adjoining county, or to the jail of 
some other county when more accessible, if the jail of the county is 
in an unsafe condition, under such rules as are prescribed in this 
Code. 

§1128. (306.) Defaulting sheriffs fined for contempt. If any sheriff 
or deputy fails to comply with the provisions of the preceding sec- 
tion, he shall be fined for a contempt, as the clerk of the superior 
court is in similar cases. Section 4366 of the Civil Code also applies 
to sheriffs. 
^i^ 868, §1129. (4688.) Duty of officers when venue is changed. In all cases 
in which a change of venue shall be made, the sheriff of the county 
from which the prisoner is to be moved, shall carry the prisoner to 



325 COUNTY JAILS. U80-11M 



Jails, control of, In certain counties. 



the county to which tho change of venue was directed, and deliver 
him to the sheriff of said county, who shall then take charge of such 
prisoner as in other cases. The sheriff of the county from which t he 
prisoner is to be removed, shall carry with him and deliver to the 
sheriff the warrant under which the prisoner was arrested, or the 
commitment. The clerk of the superior court of the county from 
which the prisoner has been removed, shall send a true transcript of 
the order for the change of venue, together with the evidence before 
the court of inquiry, and all other papers connected with the case, to 
the superior court of the county to which the prisoner has been trans- 
ferred. 



ARTICLE 2. 



JAILS, CONTROL OF, IN CERTAIN COUNTIES. 

§1130. Jails and inmates controlled by county commissioners. The Act | ls95 > 
jail and persons confined therein shall be under the control of the 
county commissioners of roads and revenues as provided for in this 
Article. They shall have power to make proper rules and regula- 
tions for the government and control of the jailer and jail and the 
prisoners and inmates. 

§1131. Appointment of jailer, deputy , guards , oaths, and bonds. The Act | 1895 » 
board of commissioners of roads and revenues shall appoint the 
jailer, and he shall have the appointment of one deputy-jailer sub- 
ject to the approval and supervision of the county commissioners. 

The deputy and jailer shall, before entering on the duties of their 
offices, give to said commissioners bond and security in the sum of 
not less than one thousand dollars each, conditioned for the faith- 
ful performance of the duties of their offices as jailer and deputy- 
jailer, and shall take and subscribe before the ordinary of the 
county the following oath : "I do swear that I will well and truly 
do and perform all and singular, the duties of jailer and deputy- 
jailer for said county, and that I will humanely treat all prisoners 
who may be brought to the jail of which I am the keeper, and not 
suffer them to escape by any negligence or inattention of mine. 
So help me God." Which bond and oath shall be filed and recorded 
as those of a sheriff's deputies. The jailer shall also have the ap- 
pointment of such jail guards as the county commissioners may 
deem necessary for the protection of the jail. 

§1132. Salaries and how paid. In lieu of, and in full compensa- Act | 1S95 - 
tion for, all fees now allowed by law for dieting prisoners, receiving 
prisoners, turning keys, or other fees as jailer, the jailer shall re- 
ceive an annual salary not to exceed fifteen hundred dollars, 
payable in monthly installments out of the county treasury of the 



§§1188.1134 COUNTY JAILS. 326 



Jails, control of. in certain counties. 



county on the order of the county commissioners, which order shall 
be a good voucher to the treasurer of the county; and the deputy- 
jailer shall receive in full compensation for his services an annual 
salary Dot exceeding the sum of nine hundred dollars, to be fixed by 
the county commissioners, payable in the same manner as above 
prescribed for the jailer. The jail guards shall receive as full com- 
pensation for their services a sum not exceeding sixty dollars per 
month each, to be fixed by the county commissioners of roads and 
revenues, and to be paid in manner as above prescribed for jailers, 
and as hereinafter provided. 
Acts 1895, §1133. Jailer's monthly report. The jailer shall make a report 
in writing to the commissioners on the first day of each month, 
stating — 

1. The condition of the jail; 

2. The names and number of prisoners received in and dis- 
charged from the jail during the preceding month; 

3. The names and number of prisoners sent from the jail to the 
penitentiary or county chain-gang; 

4. The names and number executed according to law, during the 
preceding month; 

5. The names and number of such as were under treatment by 
the jail physician for sickness or disease; 

6. The names and number of lunatics and what was done with 
them; 

7. The names and number of prisoners on the county chain-gang; 

8. The number of pounds and quantity of meat, bread, flour, 
meal, or other provisions, and all supplies on hand; 

9. All sums of money received by him as jailer for receiving, 
dieting, and keeping prisoners, and turning keys on them, commit- 
ted by the United States authorities, or by the authorities of 
other counties, or from other sources except hereinafter specified; 

10. Any other information required by the commissioners, neces- 
sary to place them in possession of full knowledge of the con- 
dition of the jail and its inmates. 

The money mentioned in paragraph 9 shall be paid into the 
county treasury, and the receipt of the county treasurer shall be a 
sufficient voucher for the jailer, and he shall deliver a duplicate 
receipt to the commissioners or their agent. 
Acts 1895. §1184. Expenses, how paid; necessaries supplied to inmates; bids; and 
returns. The commissioners shall draw their warrants on the county 
treasurer for all expenses of the jail, and no fees shall be charged 
for dieting or for other purposes, against the county in which these 
provisions are of force, as to prisoners sent to the jail from a court 
or magistrate whose expenses are paid out of the county fund. They 
shall supply the persons in jail, and prisoners under the control of 



327 COUNTY JAILS. L185, 1186 



Jails, control <>f, in certain conntlM* 



the commissioners, with provisions and other nee< •- - ; ,n< ■- and -ap- 
plies at prime cost, and for the lowest cash prices, and fchey shall 
advertise for competitive bids for the same, reserving the* right to 
reject any and all bids. They shall make to the grand jury at the 
spring term of the superior court each year, for inspection, a return 
of all receipts and expenditures of the jail, with proper reference to 
the vouchers and presenting all bids made as aforesaid. 

§1135. Counties to which this Article applies. The provisions of this 
Article shall not extend to any county unless there is in it a city of 
over sixty-four thousand inhabitants according to the census taken 
by the United States, nor shall they apply to any county having 
local legislation on the subject. 

§1136. When the provisions of this Article take effect. Theprovisi* V s * 6 ' 

of this Article shall take effect on the first day of January, eighteen 
hundred and ninety-seven: Provided, however, in the meantime the 
same shall have been voted on by the qualified voters of the counties 
to be affected thereby, at the time of the next regular election for 
county officers; at which election all the qualified voters who favor 
its adoption in said counties shall have written or printed on their 
ballots the words, "For management and care of jail by county 
commissioners," and those who oppose the same shall have printed 
or written upon their ballots the words, "Against management and 
care of jails by county commissioners;" and if a majority of the 
votes cast at the election shall be for the management and care of 
jails by the county commissioners, then this Article shall become 
operative in that county at the date aforesaid. The result of the 
election shall be declared by the authority declaring the result of 
the election held for county officers. 



§1137-1141 MISDEMEANOR CONVICTS. 328 

How disposed of. 



/■ 



MISDEMEANOK CONVICTS. 

777 7/ 



ARTICLE 1. 



HOW DISPOSED OF. 



A P ct V S74, §1137. (4814.) How disposed of '. When misdemeanor convicts are 
sentenced to work in a chain-gang on the public works or roads, or 
are confined in jail for non-payment of fines, the ordinary, county 
judge, or board of commissioners, of the county where the convic- 
tions were had or where the convicts are confined, may place them, 
in the county or elsewhere, to work upon the public works of the 
county, in chain-gangs or otherwise. 

The convicts may be hired to municipalities : 55 Ga. 435. So much of this 
section as authorized hiring to a private individual was repealed : 95 Ga. 538. 

A p Ct 37 18R56 ' §1138. (4815.) Safe-keeping, support and employment. The county 

1866, p. 26. authorities having control of convicts, shall provide suitable places 
for their safe-keeping, and their support by the county, and shall 
employ necessary overseers and guards for their safe-keeping and 
constant and diligent employment upon the public works. 

§1139. (4815.) Counties may combine. For the purposes specified 
in the preceding sections, two or more counties may combine, keep 
and work together the convicts, on such terms, and on such public 
works anywhere in the State, as they may agree upon. 

^SjfigT 8 " 9, §1140. (4821 d.) When demand for convicts may be lodged. When a 
county or incorporated city, town or village, has organized, or de- 
termined to organize, a chain-gang, to work misdemeanor convicts on 
its roads, streets, or other public works, it may lodge demands for 
such convicts with the clerk of any court having jurisdiction to try 
misdemeanors, and such clerk shall file the same, noting date of re- 
ceipt by him. 

^Xjf* 9, §1141. (4821 e.) Oldest demand to be filled first. When any person 
shall be convicted of a misdemeanor and sentenced to work on the 
public works, in chain-gangs or otherwise, he shall be delivered to 
the county or municipal corporation having the oldest unfilled de- 
mand on file with the clerk aforesaid, unless the county in which 
the conviction is had, shall have, within its own limits, an arrange- 
ment for working convicts on the public works of the county, or 
some municipal corporation thereof, in which case the convicts 
may be retained and worked in that county. 

Hiring to a private individual not authorized: 95 Ga. 538. 



329 MISDEMEANOR CONVICTS. g§ 1 1 \2-\ 1 48 



Whippintf-I.OHHfH. 



§1 142. (4821. f .) County authorities shall not demand or receive fees far A I ;';. 
delivery. The county authorities in which such conviction* may be 
had, shall not demand or receive from any other county or any mu- 
nicipal corporation any bonus, fees or compensation, for the delivery 
of the convicts. 

§1143. Counties may hire convicts. County commissioners or Oldi-^*^ 80, 
naries may hire convicts from other counties that do not work theil 
own convicts, upon such terms as maybe agreed upon by the respec- 
tive county authorities, and such convicts shall be worked on the 
public works in connection with the convicts of the county hiring 
them. 

§1144. One county may establish camps in another for quarrying, etc. A p ct ^ 1%2 ' 
County authorities having control of a chain-gang may establish 
camps beyond the limits of their respective counties, at any point in 
this State, for the purpose of quarrying or gathering rock, gravel or 
other material to be used by said county in the improvement of its 
public roads, or the streets of any city situated therein. The con- 
sent of the county commissioners, ordinary or county judge of the 
county in which the camps are to be located, shall be first obtained. 

§1145. Machinery for such camps. Any county establishing a camp ^ ct | 4 * 892, 
as provided in the preceding section may, in connection therewith, 
purchase, use and control any machinery necessary for the purpose 
of crushing rock or preparing the same for use on the public roads, 
or any public building in their respective counties, in as full and 
ample a manner as if the work was carried on within the limits of 
their respective counties. 



ARTICLE 2. 

WHIPPING-BOSSES. 

§1146. Appointment of ivhipping-bosses. The authorities of any Aetsisdo-i. 
county or municipal corporation, employing or having labor per- 21 ~- 
formed by convicts in such county or municipal corporation, may 
appoint a whipping-boss for such convicts, and fix his compensation 
and prescribe his duties. Proper and necessary discipline may be 
administered by the superintendent or other officer or person having 
control, under authority, of a convict, without the employment of a 
whipping-boss. 

§1147. No whipping save when reasonably necessary. No whipping Act | l F B0 " 11 
shall be administered to a convict by a whipping-boss or other officer 
or person, except in cases where it is reasonably necessary to enforce 
discipline or compel work or labor by the convict. 

§1148. Rules to be prepared and published for government of convicts. AeT .y, S9CKL 
Said authorities shall prepare and have published full and complete. 



§§1149. 1150 MISDEMEANOR CONVICTS. 330 

Time Shortened for good behavior. 

reasonable aud humane rules and regulations for the government of 
the convicts under their control, which rules may be amended as 
occasion may require, but shall specifically prescribe the powers and 
duties, in all respects, of the superintendent, commissioner, guard, 
whipping-boss, or other person connected with the management of 
convicts, as to their care, keeping, control, work and discipline. 
^ShS 80 " 1 " §1 149. Superintendent, etc., not personally liable for damage to convict. 
No superintendent, commissioner, guard, whipping-boss, or other 
person or employer of convicts, shall be personally liable for any 
injury or damage to a convict resulting from the employment, care, 
keeping, control, work and discipline of convicts who are under the 
direction of said governing authorities, respectively, in accordance 
with reasonable and humane rules and regulations thus adopted. 



ARTICLE 3. 

TIME SHORTENED FOR GOOD BEHAVIOR. 

"p^sq! 884 " 5 ' §1150. Good behavior of misdemeanor convicts. Persons having 
charge of chain-gangs of misdemeanor convicts shall keep a book in 
which shall be entered the names of the convicts under their charge, 
and at the end of each laboring day they shall record opposite the 
name of each his conduct during that day, and should it appear 
from this book that the conduct of any one has been good, and that 
he has been diligent in performing the work assigned to him, his 
time of service and confinement shall be shortened four days in each 
month for the time of sentence. 



881 THE PENITENTIARY. L151, 1152 



Leasing out and control of convicts; duties oi iessees f officers, etc. 



THE PENITENTIARY. 



f?-i0js-& *-tr*» W^-iu^. 



47~ 7/ 

ARTICLE 1. ^- 6 f. 

LEASING OUT AND CONTROL OF CONVICTS; DUTIES OF LESSEES, 

OFFICERS, ETC.* 

§1151. (4813 a.) Governor to lease out convicts. As the leases or^i 8 ^ 7 ^ 
hiring of convicts under the Act of March 3d, 1874, expire, and as 
leases and hirings may.be vacated under said Act, and as convicts 
may require to be disposed of by the Governor of the State, not 
affected by existing contracts, the Governor of the State is hereby 
authorized and required to farm or lease said convicts when dis- 
charged from the operations of said hirings or leasings and existing 
contracts for the space of time not less than twenty years, to one 
or more companies, as in his judgment will best subserve the interest 
of the State, or association of persons, which shall be an incorpo- 
rated company, by virtue of the operation of this Act, as hereinafter 
provided. Said lease or hiring for said term shall be upon such 
terms and considerations as shall be agreed upon with said company 
by the Governor. Said company shall give bond and good security 
to the Governor of this State, in a sum not less than one hundred 
thousand dollars, for a faithful compliance with their contracts; but, 
if there be more than one company, the amount of said bond to be 
left in the discretion of the Governor, in each case in proportion to 
the number of convicts that each may get: Provided, that the aggre- 
gate of said bonds shall not be less than one hundred thousand 
dollars. In the lease or hiring to be made, the Governor shall 
require all necessary stipulations and arrangements to be made by 
said company for the humane treatment of the convicts intrusted to 
them for their security and proper management, in accordance with 
the rules and regulations now in force for the control of convicts, so 
far as the same may be consistent with the working of said convicts 
by said company; but no lease or hiring may be made which shall 
not relieve the State from all expense, except the salary of the prin- 
cipal keeper, physician and chaplain. 

§1152. (4813 b.) Notice of day of leasing. No lease or hiring shall Act8 Jf5s 
be made under the provisions of this Act until after due notice is 
given by the Governor of this State that on a certain day said leas- 

*As this Act is temporary in character and contracts have been made under it, it is given 
here without change. 



§1158 THE PENITENTIARY. 332 

Leasing out and control of oonvicts; duties of lessees, officers, etc. 

ing or hiring shall be made, which notice shall not be less than 
sixty days, and the Governor may select from the lessees offered, 
such ones as he deems best for the public welfare. 

^vd?«Im3 §11^8. (4813c.) Place and manner of keeping convicts. The Gov- 
ernor of the State, in accordance with the power reserved under the 
first section of this Act, shall require said company to procure, at 
their own expense, a suitable site or place, being an island on the 
coast of Georgia if practicable, and if not, some other suitable place, 
to be determined by the Governor, within the limits of this State, 
and at their own expense erect, under the direction of the Governor 
and principal keeper of the penitentiary, there, suitable, convenient, 
safe, healthy and commodious prisons, barracks, hospitals, guard- 
houses, and all other dwellings necessary for the safe-keeping and 
comfort of the convicts under its care and control, which shall be 
known as the penitentiary of this State. From this prison such con- 
victs as under the advice and direction of a physician (to be ap- 
pointed by the Governor for that purpose, who shall reside at such 
place in the State of Georgia as may be selected by the Governor of 
the State, having in view the proper discharge of the duties incum- 
bent on said physician, and also visit, prescribe for and attend such 
diseased and sick persons as he can — but such physician shall not be 
obliged to attend sick or diseased convicts away from the peniten- 
tiary, all of whom shall be nursed and furnished medical attendance 
by the lessees at their own expense, and who shall in every case fur- 
nish all medicine and nurses required by the physician — at a salary 
of two thousand dollars per annum, to be paid by the State of Geor- 
gia) are adjudged competent to labor on roads, canals, mines, quar- 
ries, and making brick, may be taken out and employed by said 
company as said company may contract to perform and labor upon 
within the limits of this State; but convicts for long terms — for life 
and periods of five years or more — when so adjudged fit, by said 
physician, for hard and physical labor, must, if possible, be em- 
ployed in mining, and the residue of the convicts held and controlled 
by said company, meaning thereby those not engaged in working on 
mines, canals, roads, quarries, and making brick, must be kept at 
said place or site, known as the penitentiary, and there employed 
upon such works as are consistent with their health, age, sex and 
strength; but nothing herein contained shall prevent the lessees 
from using in farm labor at the place or places where the peniten- 
tiary is located, upon their own land, any and all convicts who can- 
not be employed in working upon roads, canals, mines, quarries and 
making brick. In the performance of labor by either class of con- 
victs there shall be such regulations, restrictions and arrangements 
made by the Governor and said company, to be enforced by the Gov- 
ernor of this State, which will associate only persons convicted of 



THE PENITENTIARY. L154-1166 



Leasing out and control of convicts; duties of Ichhcch, officer-.. •■'<■ 



crimes of moral turpitude, which shall ra^unl the conditions of the 

sexes and age of convicts and ability to labor. All rules arid regu- 
lations necessary and proper for the reform of the convicts irhich 
the Governor may prescribe shall be faithfully observed. To aid 
this reform the Governor of the State shall appoint a chaplain to 
the penitentiary, at a salary of five hundred dollars per annum, to 
be paid by the State. Said chaplain shall reside on said island or 
place where the penitentiary is located, and whose duty it shall be 
to aid in reforming the moral character of the convicts, who shall 
receive from benevolent societies and charitable persons and institu- 
tions Bibles and other books, tracts, papers, etc., and distribute 
them among the convicts under supervision of the lessees. 

§1154. (4813 d.) Laics continued in force. All the provisions of ^^j 876 ' 
the Act of March 3d, 1874, not inconsistent with the provisions of 
this Act, shall remain in full force, except as to the time of labor, 
which in no case shall be unreasonable or oppressive, and, in addi- 
tion thereto, that the condition of the penitentiary shall at all times 
be subject to an inspection, as hereinafter prescribed, and all pro- 
visions existing under Act of March 3d, 1874, as to vacating leases 
or contracts, may be used by the Governor of this State in relation 
to the case herein provided for. 

§1155. (4813 e.) Lessees to be citizens, and incorporated. The persons A p ct 4 3 1 ~ 7 ''' 
who compose the company to lease said convicts, under this Act, 
shall be bona fide citizens of this State, and so soon as the terms of 
the lease are agreed upon between the Governor and the said com- 
pany, and their names entered on the minutes of the Executive 
Department, and the lease or hiring signed and accepted by the Gov- 
ernor by an order entered on- the minutes of the Executive Depart- 
ment, from that time said company shall be a body corporate for 
the term of the lease or hiring, and known as the "Georgia Peniten- 
tiary Company," with full power to sue, as other corporations, and 
to be sued on all contracts made by said company, in the county 
where the penitentiary is located, during the existence of said lease, 
and after the same has expired, until the business of said com- 
pany is entirely wound up, and said company shall have full power, 
as other incorporated companies, to make by-laws and other rules 
and regulations for the government of the company, and also all 
other powers usually necessary and proper for the existence and 
perpetuation of said incorporated company, not in conflict with 
the laws of this State and the Constitution of the United States, 
and shall have full power to buy, sell, lease, rent and hold property 
for the purposes of their charter. 

§1156. (4813 f.) Subletting of convicts prohibited. The incorpora- A p et | 4 lS76, 
ted company so leasing said convicts shall not be allowed to sublet or 
lease or hire to others said convicts, and if at any time such sub- 



§§ L157-1159 



THE PENITENTIARY. 



334 



E<easing out and control ol convicts; duties of lessees, officers, etc. 



Acts 1876, 
p. 44. 



Acts 1676. 
p. 44. 



Acts 1876, 
p. 44. 
1806, p. 80. 



letting, subleasing or hiring is done, or permitted to be done by it, 
then the Governor of the State shall proceed to vacate said lease, 
and to re-lease, under the same restrictions and conditions as in this 
Act provided, or to sue and recover of said company the sum of five 
hundred dollars for each subleasing or re-leasing; but nothing in 
this section contained shall prevent the lessees from doing the work 
allowed by this Act, under contract with others or through their own 
agents, and by convicts exclusively under their own control and 
supervision. 

§1157. (4813 g.) Damages for escapes. For breach of the bond 
herein provided for, as to negligent escapes, the damages to be al- 
lowed against said company so leasing shall not be less than two 
hundred dollars for each escaped convict, unless said convict is 
caught and returned to work within two months, and it shall be the 
duty of the lessee or lessees under this Act, immediately after any 
escape, to make a report in writing to the principal keeper, who shall 
lay the same before the Governor, of all the circumstances attend- 
ing such escape, and if the Governor shall find therefrom, or by any 
other means, that such escape was caused by negligence, it shall 
be his duty to institute suit for the damages herein provided for, 
and for cruelty to convicts, besides the punishment which may be 
inflicted under the criminal laws of the State, and damages which 
may be recovered by the convict so injured, the Governor of the 
State, suing for the State, may recover on said bond not less than 
four hundred dollars on each case of such cruelty. 

All escapes prima facie negligent, by Acts of 1889, p. 149: 85 Ga. 168. 

§1158. (4813 h.) Convicts, hoiv inspected. The Governor of the 
Stat^ shall require, and the principal keeper of the penitentiary 
shall, under such regulations, make a monthly inspection of the 
personal condition of every convict held by said company during its 
lease, and a monthly report from said keeper to himself of his inves- 
tigations under said inspection, and the Governor may at any time, 
upon a complaint made and supported by proper proof, require of 
said principal keeper of the penitentiary a special investigation of 
any or all of said convicts. In addition to these means of ascer- 
taining the condition of such convicts, the Governor may, at any and 
all times, appoint a suitable and intelligent person to inspect the 
condition of said convicts, and report to him their condition in 
every respect. 

§1150. (4813 i.) Vacation of lease, and re-leasing. If, for any 
cause, said lease is vacated by said Governor, a new lease of said 
convicts may be made for the unexpired term of the lease contract 
vacated, and if no lease can be effected under the provisions of this 
Act, then the Governor may lease said convicts according to the pro- 
visions of the Act of March 3d, 1874. 



386 THE PENITENTIARY. L160-1166 



Leasing ont and control of convict, ; duties of lessees, officer! 



§1160. (4813 j.) Convicts not to be guards. The lessees under this * 
Act shall not use as guards any of the convicts, or place them in 
positions of trust and control over the convicts, and such conduct 
shall be a breacli of duty in said lessee, and a violation of the bond 
of said lessee, for which the Governor may vacate said Lease or sue 
said company, and recover from the same the sum of five hundred 
dollars for each act of violating this law. 

§1161. (4813 k.) Highest bid to be preferred. The Governor, in *•*#■* 
leasing the said convicts to the said company or companies, shall give 
favorable consideration to the highest bid or bids, all other things 
being equal. 

§1162. (4813 k.) Special charge to grand jury. It shall be the duty *** jjg**' 

of the judges of the superior courts to give in special charge to the m - 
grand juries of each county where convict camps are located, and at 
each term of their respective courts, all laws now of force, or which 
may hereafter be passed, in relation to the inspection, management 
and control of the convicts of this State. 

§1163. (48131.) Committee to visit convict camps. It shall be the Acts 1&7&-&, 
duty of the foreman of the grand jury receiving the charge directed 
to be made under the first section of this Act, to appoint a commit- 
tee of six citizens of the county, to be composed of three members 
from the grand jury of said county, and three intelligent and up- 
right citizens of such county, whose duty it shall be to visit the 
convict camps located in such county at a day fixed by the foreman 
of such grand jury, and without notice to the lessees of the convicts, 
and to make a thorough inspection and investigation as to the sani- 
tary condition, treatment and management of the convicts in such 
county, as also whether there has been violation of the laws of this 
State in relation to the convicts of the State located in such county, 
by the lessee, managers, guard, overseers, or any person having or 
exercising authority over said convicts, and to report in writing the 
result of such inspection and investigation to the grand jury at and 
during the term of the court in which they are appointed. 

§1164. (4813 m.) Report to grand jury. It shall be the duty of the ActeiKra-9, 
grand jury to whom the report is made under the second section of 
this Act, to act upon the same during the term of the court in which 
said report is received, to prosecute, or cause to be prosecuted, by 
presentment or indictment, all violations of the laws of this State 
in relation to the convicts of the State, and to make a full report 
upon the condition of the convict camps in their respective counties 
in their general presentments. 

§1165. (4813 n.) Presentment of jury to be sent to keeper of penittii- Acl ^ :i ' 9 - 
tiary. It shall be the duty of the clerk of the superior court to for- 
ward to the principal keeper of the penitentiary, or the office in 
which the convict records of the State are now or mav be hereafter 



|§1166-11C» THE PENITENTIARY. 386 



Leasing out and control of convicts; duties of lessees, officers, etc. 



kept, a certified copy of so much of the general presentments of the 
grand juries of the county where convict camps are located as relate 
to the subject-matter contained in this Act. 
A p ct ^ : ^- §1166. (4818o.) Chaplain Jiow appointed. It shall be the duty of 
the foreman of the grand jury appointing the committee under the 
second section of this Act, and at the same term of the court, to 
appoint a chaplain to the convict camp located in his county, whose 
duty it shall be to aid in reforming the moral character of the 
convicts, and who shall preach at least one sermon for the benefit of 
the convicts, and in the convict camps, each Sunday during his 
appointment, unless providentially prevented from so doing : Pro- 
vided, There shall not be more than one chaplain appointed for each 
county having a camp or camps within it. 

*Vp 5 m' S * 9, §1167. (4813 p.) Compensation of committee and chaplain. The com- 
»«• mittee of inspection appointed under the second section of this Act 

shall receive as compensation for their services three dollars per 
diem for each day actually and necessarily engaged in said inspec- 
tion; but nothing contained in this Act shall be so construed as to 
authorize the grand jurors appointed under the Act to receive or 
draw pay as grand jurors during the period of time they are engaged 
in such investigation, but the per diem of three dollars provided for 
in this Act shall be the compensation for the days actually engaged 
in such inspection as grand jurors. The pay of the chaplain under 
this Act shall be three dollars for each Sunday devoted to preaching 
in the convict camps. 

A p Ct i42 878 " 9, §11^8. (4813 q.) Committee and chaplain, how paid. The compen- 
sation of the committee appointed under this Act, as also that of 
the chaplain, shall be paid out of the money received from the lease 
of convicts on an itemized account, audited and approved by the 
judge of the superior court of the county where such services are 
rendered, which itemized account, when so certified and approved, 
shall be placed with the comptroller-general for collection and be 
paid by Executive warrant on the convict fund aforesaid. 

A f% 1877 ' §1169. (4813 r.) Official term and duties of physician of penitentiary. 

A p d 5 fnda ' The term of office of the physician to be appointed under the pro- 
visions of said Act shall be for four years, subject to removal by the 
Governor of the State upon satisfactory proof made before him of 
incapacity or unfitness for the office, or neglect of duty; that said 
physician shall reside at such place in the State of Georgia as may 
be selected by the Governor of the State, having in view the proper 
discharge of the duties incumbent on said physician; that in addition 
to the duties imposed by said Act of February 25th, 1876, not incon- 
sistent with this Act, said physician shall report to the Governor of 
the State upon actual inspection and examination, once every two 
months, the physical condition, health and situation, so far as it re- 



887 THE PKNITKNTIARY. L170-1178 



Leasing out and control of eonvjete; duties of l eii ett y oflteow 



lates to the health of all of said convicts; that be shall have the 
direction and government of the medical treatment of laid eonvic 

and of all regulations to preserve and restore the health of the same, 
by all persons employed by the lessees as physicians and attendants 
upon the convicts aforesaid. 

65 Ga. 68, 500 ; 67/565. 

Subletting is illegal: 68 Ga. 12. Vested rights to the convicts under the 
lease: 71 Ga. 302. 

§1170. (4821 i.) Person appointed to inflict punishment . The lessees -^ 
of convicts shall appoint in writing, at each camp, some discreet and 
proper person in their employ, whose appointment shall receive the 
written approbation of the Governor, subject at any time to revoca- 
tion by him, before he shall be authorized to discharge the duties of 
his office, and who shall stay at such camp, and who alone shall in- 
flict punishment upon any convict for a violation of the rules 
prescribed for their government. 

§1171. (4821 i.) Appointees to make reports. The appointees pro- ^J^ 80 " 1, 
vided for in the preceding section shall make monthly reports, under 
oath, to the Governor, in which they shall give the names of all con- 
victs punished by them, the date, nature, cause, and extent of such 
punishment, and shall state the condition of the convicts at their 
respective camps, and the treatment thereof; and shall, in their re- 
ports, state whether they know of any cruelty, or mistreatment of 
any convict in said camp, and if so, what it was, by and upon whom 
practiced, and shall, also, state the diet at such camp, and the aver- 
age number of hours in each day they are required to work. 

§1172. (4821 j.) Clothes and transportation on discharge . Upon the ActeMBO-i, 
discharge of any convict, he shall, by the lessees, be furnished with 
a suit of citizen's clothes, not to cost less than six dollars, and trans- 
portation to the county from which he was sentenced. 

§1173. (4698.) Commutation of term for good behavior. The superin- Act | s 1 - 7 - 
tendent of each penitentiary camp shall keep a correct register to be 
termed the "good conduct account," in which he shall faithfully 
record the conduct of each convict under his charge, who shall 
demean himself uprightly, and shall in his monthly report to the 
principal keeper of the penitentiary, state the name of such convict, 
and each convict who shall demean himself uprightly and well, shall 
have deducted from the time for which he may have been sentenced, 
two months for the second year, three months for each subsequent 
year, until the tenth year, inclusive, and four months for each re- 
maining year of the time of imprisonment. This reduction of time 
is upon consideration of continued good conduct, and shall apply 
only to such convicts who have not been sentenced to imprisonment 
for life; and such record shall be evidence for or against the convict 
in any of the courts of this State. 
22 



§§ 1174-1179 THE PENITENTIARY. 



Leasing out and control of convicts ; duties of lessees, officers, etc. 



V.»!? P * §H74. (4812.) Expenses of trials for escapes. The expenses of all 
trials tor escapes from the penitentiary or attempts to escape and 
for all other crimes committed by penitentiary convicts, while con- 
lined in the penitentiary, shall be paid by the State, upon a bill of 
costs to be certified by the judge trying the case. 

A p^ 1>7- § 1 17o. (4818s.) Execution against lessees. Whenever any debt due 
the State by the lessees of penitentiary convicts is placed with the 
comptroller-general for collection, and an itemized account of the 
same is certified by the principal keeper of the penitentiary as correct 
and unpaid, the comptroller-general, after thirty days written notice 
to such lessees, shall issue execution against them and the securities 
on their bond, for the amount so certified, and all costs, which shall 
be collected as are executions by said officer against defaulting tax- 
collectors. 

A p ot .V §117(3. Principal keeper as inspector. The principal keeper shall 

p. 48. continue in office as inspector of convicts, and shall report to the 
Governor any and all violations of the contracts by the persons to 
whom the convicts shall have been farmed or leased, and discharge 
all the duties now required of him by law, as well as those of 
inspector of the penitentiary, so far as such discharge shall be con- 
sistent with the carrying out of the contract or contracts hereinafter 
authorized. 

^l'v;* 580 " 1 ' §1177. (4821 g.) Assistant keeper. The Governor shall appoint to 
the principal keeper of the penitentiary, an assistant, whose term 
of office shall expire with that of the principal keeper; said assist- 
ant, as to his official conduct and responsibility, shall be subject to 
the same rules and regulations of law as the principal keeper, and 
shall receive a salary of twelve hundred dollars per annum. 

A p l vir (> ~ 1 ' §1 1 78. (4821 h.) Duty to visit camps and report. It shall be the 
duty of the principal keeper, or said assistant, to visit, without 
notice, each convict camp in this State at least once per month, and 
to thoroughly examine and inspect said camps and the convicts 
t herein confined, and report, under oath, to the Governor, immedi- 
ately after each visit, the condition of said camps, and convicts, 
and such information as he may derive concerning their diet, treat- 
ment, and especially to report any maltreatment of the convicts 
that may come to his knowledge, together with any violations of 
the law for their government upon the part of the lessees. Said 
reports shall be filed in the Executive office, and shall at all times 
be subject to the' inspection of any citizen of the State. 

Aeto 1880-1, §1170. (4821 h.) Lessees cited to answer charges. When charges are 
tints made against the lessees, the Governor shall cite them to show 
cause, in the manner provided by law, why their contracts of lease 
should not be cancelled and forfeited, or a fine imposed, and said 



889 



TIIK PKNITKNTIAKY. 



§§ L180-1182 



Leasing out ;iu<\ control of convict,-; ; dutiefl of LeSMeft, Offieei 



convicts returned to the State. And, upon all such bearings, it 
.shall be the duly of the attorney-general to appearand represenl 

the interest of the State; and the testimony adduced upon any such 
hearing shall be reduced to writing, which, with the anal ruling of 
the Governor, shall be filed in the office of t be prinpipal keeper of the 
penitentiary, and shall at all times be subject to the inspection of 

a,ny citizen of thin State. 

§1180. Principal keeper shall make annual report to Governor. The 
principal keeper of the penitentiary shall annually, on or before the 
first day of November, make a report to the Governor of the con- 
dition of the convicts, their number, the number of escapes, deaths, 
pardons and discharges, the location and management of the camps 
or places of confinement, the diet and treatment of the convicts 
therein, together with such other information as he may think 
proper, or the Governor may require, which report shall be printed 
and laid before the General Assembly in connection with the Gov- 
ernor's message. 

§1181. Printed list of names must be attached to report 
report the principal keeper of the penitentiary shall attach a printed 
list of the names of the convicts, placing at the head of the list the 
name of the convict who has served the longest, and entering the 
names from the first to the last, according to the length of service, 
and give the age of each at the date of sentence as near as can be 
ascertained, the county from which sentenced, the crime committed, 
the length of sentence, the number of years served, the sex, color, 
health, conduct, escape, pardon, discharge, death, and the lessee or 
place of confinement, according to the following form, which form 
may be changed or modified with the consent of the Governor, 
to wit: 

FORM — . 

A List of the Names of the Convicts of the State of Georgia, together with other infor- 
mation, from the day of , IS — , to the day of . IS — . 



- -- : 



To said *£*£***> 






Name of Convict. 


a; 

< 


3 

o 

o 


a; 

s 

•i-H 
Sh 

O 


6 
o 
a 

S 
CO 


00 

o on 


w 


O 

a 

o 
O 


<D 
CO 




o 

o 


Escapes. 
Deaths. 
Pardons. 
Discharges 


o £ 


Remarks. 




























Cause of Death 










.... 





























































































































§1182. (1355.) Asylum to be divided into apartments. The trustees 
of the State Lunatic Asylum shall see that proper and distinct 
apartments are arranged for patients, so that in no ease shall the 



§§1183-11-7 THE PENITENTIARY. 34a 



Convicts produced as witnesses. 



• negro and the white person be together, nor the penitentiary con- 
victs with either, and males and females shall be kept separately. 

cobb. 781. §1183. (1809.) Insane convicts, how admitted. If a penitentiary 
convict becomes afflicted so as the affliction would entitle another 
person to a place in said Asylum, he shall be received therein if 
accompanied by the certificate of the physician to the penitentiary, 
and the principal keeper thereof, of said fact. The certificate shall 
also show the name of the convict, the offense for which sentenced, the 
county from whence sentenced, and his term of service, and it shall 
be filed and preserved. 

§1184. (1370.) How supported. If said convict has the necessary 
means, he shall pay for his support as long as he remains at the 
Asylum. 

Oobb. m. §1185. (1371.) Cured convicts, how disposed of. If such convict 
shall recover before his term of service has expired, the fact shall at 
once be certified by the superintendent to the principal keeper of 
the penitentiary, who shall forthwith have him taken back into the 
penitentiary. 

R e f S i875. lon §1186. (4666 d.) Convict becoming insane, duty of Governor, etc. In 
every case where a convict is sentenced to the penitentiary, and 
becomes insane, whether in the hands of a lessee or otherwise, on 
the fact being established to the satisfaction of the Governor, he- 
shall direct said convict to be removed to the Lunatic Asylum, 
there to be supported and receive medical assistance, as other 
pauper patients do at the expense of the State. 



ARTICLE 2. 



CONVICTS PRODUCED AS WITNESSES. 



Act ioi bfe2 " :i §H87. How convicts may be produced as witnesses. When a 
person who is confined in the penitentiary or in a county 
chain-gang under sentence, shall be needed as a witness for the 
State in a criminal case in any of the courts of this State, the 
solicitor-general or other prosecuting officer shall make a written 
application to the Governor for the attendance of such person, and 
when such application is approved by the judge of the court in 
which such person is needed as a witness, the Governor shall order 
the person having charge of such convict to deliver him to the 
sheriff of the county in which the convict is desired as a witness, 
and such sheriff shall receive and safely keep such convict, and 
return him to the person from whose custody he was received so 
soon as the court discharges him as a witness. 

Application must first be made to the Governor: 94 Ga. 66. 



Ml THE PENITENTIARY. L188-1191 



Oonvlctfl produced a§ witm 



§1188. When needed for the defendant. U the witness be needed •y;/ ] 
for the defendant in any criminal case, the defendant or hid 
attorney may make the application, and if the name i.s approved 

by the judge, as provided in the preceding section, the Governor 
shall issue his order, and all other proceedings be had as in cjj- 
of application on behalf of the State. 

§1189. Expenses, when a witness for the State. In applications in be- ^'Jjf 8 "* 8, 
half of the State, the county in which the case is tried shall pay 
the per diem and mileage of the sheriff, the jail fees for the convict 
while detained in the county as a witness, and any other proper 
expense that may be incurred by the removal of the convict, the 
bill of expense to be approved by the presiding judge of the court 
in which the convict is used as a witness. In the event of a con- 
viction, the expense herein referred to shall be taxed in the bill of 
cost. 

§1190. Expenses, when a witness for defendant. When such convict . Actsi882-8, 
shall be needed as a witness by the defendant in any criminal case, 
the defendant shall deposit enough money with the sheriff to cover 
the expense mentioned in the preceding section, unless he is unable 
to pay such expense, and the judge of the superior court of the cir- 
cuit embracing the county in which such convict shall be needed as 
a witness, shall, after examining into the financial condition of the 
defendant and the evidence sought to be obtained, determine that 
the ends of justice require the production of such convict as a wit- 
ness, then the expense shall be paid as provided in case the convict 
is used as a witness for the State. 

§1191. This proceeding is cumulative. The proceeding authorized ^ioJ 882 " 8 ' 
in this Article is cumulative. 



** HOlMHV 



REFORMATORY PRISONS. 



342 



How established, the purpose, and their management. 



/Zu<, 



t 



REFORMATORY PRISONS, 



'/4 



ARTICLE 1 



HOW ESTABLISHED. THE PURPOSE, AND THEIR MANAGEMENT. 



Acts 1888, 
PP. 120, 
123. 



Acts 1893. 
p. 120. 



Acts 1893. 
pp. 120. 
iSL 



Actfl 1888, 

p. 121. 



ActH 1888, 
p. 121. 



Act* lb'rt, 
p. 121. 



§1192. When county may establish. Whenever the grand jury of a 
county having a population of thirty thousand shall recommend the 
establishment of a reformatory prison for misdemeanor convicts 
under sixteen years of age belonging to said county, the ordinary 
of such county shall call an election to dec